Petition for Writ of Certiorari — Dallas County v. Crane

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Supreme Court, U.

In The Hem.

Supreme Court of the United States

October Term, 1985

re’

HENRY WADE,

Petitioner,

STEPHEN C. CRANE, on behalf of

himself and others similarly situated,

Respondents.

re’

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

ray

Henry WabDE

District Attorney

Dallas County, Texas

Sue LaGarpe

Chief Felony Prosecutor

Dallas County, Texas

Peter L. Harian

Assistant District Attorney

Dallas County Courthouse

600 Commerce Street

Dallas, TX 75202

(214) 749-8134

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED

1. Whether a Texas District Attorney is immune from a

civil claim for damages arising from the performance of his

official duties to initiate or present the state’s case in a

criminal prosecution?

2. Whether a Texas District Attorney is a state officer

whose official acts constitute state action and is accord-

ingly immune from a civil claim for damages under the

Eleventh Amendment to the United States Constitution?

LISTING OF PARTIES

PETITIONER:

Henry Wade

Criminal District Attorney

Dallas County, Texas

ATTORNEYS FOR PETITIONER:

Sue Lagarde

Chief Felony Prosecutor

Dallas County, Texas

Peter L. Harlan

Assistant District Attorney

Dallas County, Texas

RESPONDENTS:

Stephen C. Crane, on behalf of himself and others

similarly situated

ATTORNEYS FOR RESPONDENTS:

Johnston Larson & Trantham

Douglas Larson

Hicks Gillespie James & Lesser, P.C.

Peter Lesser

INTERESTED PARTIES:

State of Texas

Earl Bullock, Dallas County Clerk

L. E. Murdoch, Former Dallas County Clerk

Dallas County, Texas

Ben Ellis, Judge, Dallas County Criminal Court

No. 1

John Orvis, Judge, Dallas County Criminal Court

No. 2

Mike Schwille, Judge, Dallas County Criminal

Court No. 3

Berlaind Brashear, Judge, Dallas County Criminal

Court No. 6

John McCall, Judge, Dallas County Criminal

Court No. 7

iil

ATTORNEYS FOR INTERESTED PARTIES:

Jim Mattox—Attorney General of Texas

Larry King—Assistant Attorney General

Henry Wade—Dallas County Criminal District

Attorney

Sue Lagarde—Dallas Couaty Assistant District

Attorney

Peter Harlan—Dallas County Assistant District

Attorney

Earl Luna—Law Offices of Earl Luna, P.C.

Robert E. Luna—Law Offices of Earl Luna, P.C.

Mary Milford—Law Offices of Earl Luna, P.C.

TABLE OF CONTENTS

Page

I rn i

I I iO re ot il

ieee SR A A She RMN, CONOR MMS iv

RE ENE ee ee ee OER eS SRE Rea ee 1

ee en er ae 2

Constitutional and Statutory Provisions Involved ....... 3

SOI I IE iii cinicsicsosintacaiossncrmanbin eats 4

Rensous Ter Grantiiy Writ 9

There is a Conflict Among the Cireuits 00... 10

The Power of Supervision Should be Exercised ..... 11

The Questions are Substantial 0000 12

IE ei acs ee ee 13

PIE Miaditistiititihasnncnindnbnenaieicdmadiammmpmmmae nat A-1

Appendix cis ccsiaieigieincgs Wetland B-1

r EES EEN ER 9 OO iano’ C-1

gta OLE Re ENCE Ee ee D-1

EE A Sasso ONE Me! SYS K-1

alr EER RRs Se AMA ce SN OE Rn eae ee F-1

I cise snphcsescaeskcalasgaliaeitscaade Lace aie une a G-1

Appendix H .. csieoasiin tated cic iis iigslnagt tise cam H-1

(RESEND RAMC Sere ate OP een SPER ST I-1

Appendix J ilekacihceadcnebsigalieimiaatene J-1

Appendix K K-1

ME FR kainate ens aa L-1

tbs BORIS mn

TABLE OF AUTHORITIES

Page

CasEs:

Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977) ............. 10, 11

Baker v. Wade, 769 F.2d 289 (Sth Cir. 1985) ow. 12

Henzel v. Gerstein, 608 F.2d 654 (Sth Cir. 1978) ............... 12

Imbler v. Pachtman, 424 U.S. 409, 47 L.Ed.2d 128,

96 S.Ct. 984 (1976) . 9

Macko v. Byron, 641 F.2d 447 (6th Cir. 1981) ................... 10

Prince v. Wallace, 568 F.2d 1176 (5th Cir. 1976) —W... 11

Smart v. Jones, 530 F.2d 64 (5th Cir. 1976), cert.

denied, 42 U.S. 1125 8

Taylor v. Kavanagh, 640 F.2d 450 (2nd Cir. 1981) ........... 9, 10

Ybarra v. Reno Thunderbird Mobile Home Vil-

lage, 723 F'.23a 676 (3th Cir. 1966) 10

ConsTITUTIONS, STATUTES AND OTHER AUTHORITIES :

28 U.S.C. § 1254(1) ............ 2

re ALE __ RARRASRAMREE Iie ctaeimen eur moercewtinr caperSOOSRT saa 2s SH 6,9

42 U.S.C. § 1985 cocencoon peice iat Geist 6

42 U.S.C. § 1988 ns

Tex. Atty. Gen. Op. No. H-656 (1975) a nnneeneeenenenennenn 8

TEX. CODE CRIM. PROC. art. 15.17 —.... mre

TEX. CODE CRIM. PROC. art. 16.01 6

TEX. CRIM. PROC. CODE ANN. art. 23.01 .. ........... 3

TEX. CRIM. PROC. CODE ANN. art. 23.02 —W.. Pee

TEX. CRIM. PROC. CODE ANN. art. 23.04 ... Mees

United States Constitution, Amendment IV 3

United States Constitution, Amendment XT... 3,9, 12

wai.

ee ee

ER a

In The

Supreme Court of the United States

October Term, 1985

—— *

RENRY WADE,

Petitioner,

STEPHEN C. CRANE, on behalf of

himself and others similarly situated,

Respondents.

—_ ~~‘

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

—

-~—\-—_

Your Petitioner respectfully prays that a writ of cer-

itorari issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit, entered in this pro-

ceeding on May 2, 1985, rehearing en banc and panel re-

hearing denied July 22, 1985.

—_,*

“

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit filed May 2, 1985, reported at 759 F.2d

4i2 is reprinted in Appendix A.

The opinion of the United States Court of Appeals

for the Fifth Circuit, filed July 22, 1985, denying Petition

for Rehearing and Suggestion for Rehearing En Bane, re-

ported at 766 F.2d 193, is reprinted in Appendix B.

The Memorandum Opinion of the United States Dis-

trict Court for the Northern District of Texas, Dallas Divi-

sion, filed March 11, 1982, reported ... 534 F.Supp. 1237, is

reprinted in Appendix C. The Judgment, filed August 16,

1983, is reprinted in Appendix D. The Judgment declar-

ing the rights and liabilities of the parties to be those ex-

pressed in the District Court’s Memorandum Order of No-

vember 30, 1981, is reprinted in Appendix E, and its Order

of February 4, 1982 denying injunctive relief, is reprinted

in Appendix F. The Judgment assessing attorneys’ fees

against the State of Texas pursuant to the District Court’s

Memorandum Order of September 8, 1982, is reprinted in

Appendix G, and its unpublished Memorandum Opinion of

July 26, 1983, is reprinted in Appendix H.

ray

GROUNDS FOR JURISDICTION

The opinion of the United States Court of Appeals for

the Fifth Circuit, filed May 2, 1985, reported at 759 F.2d

412, is reprinted in Appendix A.

The opinion of the United States Court of Appeals for

the Fifth Circuit denying Petition for Rehearing and Sug-

gestion for Rehearing En Bane was entered on July 22,

1985, and this Petition for a Writ of Certiorari was filed

within ninety (90) days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C,

§ 1254(1).

Constitutional and Statutory Provisions Involved

United States Constitution, Amendment IV

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, sup

ported by oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

United States Constitution Amendment XI

The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, com-

menced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Sub-

jects of any Foreign State.

TEX. CRIM. PROC. CODE ANN. art. 23.01 (Vernon 1966)

A “capias’’ is a writ issued by the court or clerk and

directed ‘‘To any peace officer of the State of Texas’’,

commanding him to arrest a person accused of an of-

fense and bring him before that court immediately, or

on a day or at a term stated in the writ.

TEX. CRIM. PROC. CODE ANN. art. 23.02 (Vernon 1966)

A capias shall be held sufficient if it have the follow-

ing requisites :

1. That it run in the name of ‘‘The State of Texas’’;

29 That it name the person whose arrest is ordered,

or if unknown, describe him;

3. That it specify the offense of which the defendant

is accused, and it appear thereby that he is accused of

some offense against the penal laws of the State ;

4. That it name the court to which and the time when

it is returnable; and

5. That it be dated and attested officially by the au-

thority issuing the same.

TEX. CRIM. PROC. CODE ANN. art. 23.04 (Vernon 1966)

In misdemeanor cases the capias or summons shall is-

sue from a court having jurisdiction of the case. The

summons shall be issued only upon request of the at-

torney repesenting the State and shall follow the same

form and procedure as in a felony case.

ray

STATEMENT OF THE CASE

L. L. Huckaby, a member of the City of Dallas Police

Department, made an Affidavit of Complaint and swore to

the same before Lem Brotherton, Assistant District At-

torney of Dallas County, Texas, which was as follows:

FILING AGENCY DPD DATE FILED 4-16-80

COURT CC COMPLAINANT A. PEREZ

MA80023927

AFFIDAVIT

In the Name and by the Authority of the State of Texas.

PERSONALLY APPEARED before me the un-

dersigned authority this affiant, who after being by

me duly sworn, deposes and says your Affiant has

good reason to believe and does believe that one

STEPHEN CLARKSON CRANE hereinafter styled

Defendant, heretofore, on or about the 3rd of April

A.D. 1980, in the County of Dallas and State of Texas,

did unlawfully then and there knowingly promote, to-

wit: exhibit, obscene material, to-wit: one untitled 8mm

film, to A. Perez, knowing the character and content of

said obscene material, to-wit: depictions of sexual in-

tercourse and deviate sexual intercourse between hu-

man beings, Against the peace and dignity of the

state.

/s/ lL. L. Huckaby

wall Va x

0) a REINS he IR RING td A

Sworn to and subscribed

before me this the 16th

day of April, A.D. 1980,

/s/ Lem Brotherton,

Assistant Criminal

District Attorney of

Dallas County, Texas

This Affidavit was entered into evidence as Plaintiff’s

Exhibit 1. The complaint on Crane was one of 800 to 1,000

received each week by the District Attorney’s office from

the Dallas Police Department alone. (R. Vol. XIT at 496).

Based on the Affidavit of Complaint, the Dallas Coun-

ty District Attorney’s office prepared an Information and

filed said Information and Affidavit with the County Clerk

of Dallas County, Texas.! After receiving the Affidavit

and Information, the County Clerk issued a capias writ

which commanded an: Sheriff or any Constable in the

State of Texas to bring Crane, instanter, before the Coun-

ty Criminal Court of Dallas County, Texas. The capias is

included in Appendix J.

Crane was arrested by the City of Dallas Police. (R.

Vol. XIII at 707). Crane advised the officers that it was

not necessary to read him his rights because he was a

lawyer and already knew his rights. (R. Vol. XIII at. 716-

717). Crane, therefore, opted to be released on a habeas

corpus bond rather than having a hearing where the magis-

1 The Information is included in Appendix I.

trate would examine the accusations against him.2 Crane

knew that the practice of the Dallas Police Department was

to take an arrested person to a magistrate shortly follow-

ing his arrest uuless the suspect wished to opt for release

on bond and waive the hearing. (R., Vol. VI at 107).

The criminal charges against Crane were dismissed on

April 28, 1980, at the request of the District Attorney. (R.

Vol. VI at 49-50). Approximately three months thereafter,

Crane filed this civil action against the State of Texas,

the Judges of the County Criminal Courts of Dallas Coun-

ty, Texas, the Clerk cf the County Court of Dallas County,

Texas, the District Attorney of Dallas County, Texas, the

City of Dallas, Texas, and three of its police officers pur-

suant to 42 U.S.C. §§ 1983, 1985, 1988 and the common law

of Texas. Crane sought declaratory and injunctive relief

as well as monetary damages.

2 Art. 15.17 of the Texas Code of Criminal Procedure pro-

vides, in part, as follows:

(a) In each case enumerated in this Code, the person

making the arrest shall without unnecessary delay take

the person arrested or have him taken before some mag-

istrate of the county where the accused was arrested. The

magistrate shall inform in clear language the person ar-

rested of the accusation against him and of any affidavit

filed therewith . . . (Emphasis added).

Art. 16.01 of the Texas Code of Criminal Procedure pro-

vides, in part, as follows:

When the accused has been brought before a magis-

trate for an examining trial, that officer shall proceed to

examine into the truth of the accusation made, encase

the accused, however, sufficient time to procure counsel.

In a proper case, the magistrate may appoint counsel to

represent an accused in such examining trial only to be

compensated as otherwise provided in this Code. (Em-

phasis added).

Art 15.17 and Art. 16.01 are included in Appendix K.

a aR Salih ate dine ath oR aK ae Sal

in an order entered November 30, 1981, the District

Court concluded that the challenged capias procedure vio-

lated Texas law for the reason that a determination of

probable cause was not made by a neutral and detached

magistrate prior to the issuance of the capias. See order

below, Appendix E.

In accordance with the District Court’s suggestion in

its order to submit a new plan for issuing capias, the Dis-

trict Attorney changed the system by which a misdemean-

or capias was issued. This plan was approved by the Dis-

trict Court and, accordingly, the Respondent’s request for

injunctive relief was denied on February 4, 1982. See

order below, Appendix F.

At the conclusion of the subsequent trial on the issue

of damages, the jury awarded Respondent Crane $40,000

in damages. The District Court in its Memorandum Opin-

ion dated March 11, 1982, held that all Defendants were im-

mune from damages and accordingly entered a judgment

notwithstanding the jury verdict in this respect. See Dis-

trict Court opinion, Appendix C; 534 F.Supp. 1237-1247.

Thereafter, in a Memorandum Order dated September

8, 1982, the District Court ruled that Crane was a ‘‘pre-

vailing plaintiff’? under 42 U.S.C. § 1988, and was, there-

fore, entitied to attorneys’ fees. See District Court order,

Appendix G. The order also held that the District Attor-

ney and the County Clerk were acting as state officials

during the relevant times involved in this suit and accord-

ingly assessed the attorneys’ fees against the State of

Texas. See District Court order, Appendix G.

The Fifth Cireuit subsequently held that the Dallas

County system of issuing misdemeanor capias violated

both the Texas statutory law and the United States Con-

stitution. See Panel opinion below, Appendix A; 759 F.2d

at 426, 432.

The panel reversed the trial court’s finding that Dal-

las County and the District Attorney were immune from

liability for money damages. The panel, therefore, rein-

stated the jury’s award of money damages against the Dis-

trict Attorney in his official capacity. See opinion below,

Appendix A; 759 F.2d at 432. The panel, in holding the

District Attorney liable in his official capacity, also held

that he was a county official and not a state official, and

therefore, was not entitled to Eleventh Amendment im-

munity. Although it was claimed and argued by Defend-

ants that the District Attorney also had prosecutorial im-

munity in this suit, the Fifth Circuit ignored that defense

and its own holding in prior cases finding that a state

prosecutor had immunity from damage claims on this

basis.2 See opinion below, Appendix A; 759 F.2d at 432.

[A Texas district attorney is a state officer. See Tex.

Atty. Gen. Op. No. H-656 (1975), Appendix L.] In addi-

tion, the panel held the County liable for the reason that

the District Attorney purportedly was responsible for the

defective capias procedure, and therefore reasoned that his

decision ‘‘must be considered official policy attributable to

the County.’’ See opinion below, Appendix A; 759 F.2d at

430.

Accordingly the panel also reversed the assessment of

the attorneys’ fees against the State of Texas and rend-

ered the same against the County. See opinion below, Ap-

pendix A; 759 F.2d at 432.

3 Smart v. Jones, 530 F.2d 64 (5th Cir. 1976), cert. denied,

42 U.S. 1125.

ie Pai

REASONS FOR GRANTING WRIT

A writ of certiorari should be granted to resolve the

questions presented in this Petition for the following rea-

sons, to-wit:

The United States Court of Appeals for the Fifth Cir-

cuit has effectively abolished the well-established doctrine

of prosecutorial immunity by its decision herein. As a

result, the court has unreasonably exposed state prosecu-

tors in this circuit and others to civil liability for damages

arising from their official acts taken to initiate or present

the state’s case in a criminal prosecution.

Moreover, the court has ignored the overwhelming

weight of authority in Texas which has held that a Texas

District Attorney is a state officer and therefore entitled

to immunity from damage claims under the Eleventh

Amendment to the United States Constitution.

The panel decision of the Fifth Circuit in this pro-

ceeding is in direct conflict with the opinion of this Court

in Imbler v. Pachtman, 424 U.S. 409, 47 L.Ed.2d 128, 96

S.Ct. 984 (1976), which established the well-reasoned doc-

trine of prosecutorial immunity. In reaching its decision

in the case above, this Court stated as follows:

[Liability under 42 U.S.C. § 1983 would] prevent the

vigorous and fearless performance of a prosecutor’s

duty which is essential to the proper functioning of

the criminal justice system.

In the host of cases which have followed the land-

mark decision of the United States Supreme Court in the

Imbler case, the doctrine of prosecutorial immunity has

been consistently upheld and expanded by the lower courts

in other circuits. Taylor v. Kavanagh, 640 F.2d 450 (2nd

Cir. 1981); Ybarra v. Reno Thunderbird Mobile Home

Village, 723 F.2d 675 ‘9th Cir. 1984); Macko v. Byron, 641

F.2d 447 (6th Cir. 1981); Atkins v. Lanning, 556 F.2d 485

(10th Cir. 1977). The Fifth Circuit, in the instant case,

has completely stripped state prosecutors of their im-

munity from damage claims for the performance of their

prosecutorial duties. Undoubtedly this decision will have

a chilling effect upon future criminal prosecutions in this

circuit and others which may substantially undermine the

effectiveness of our criminal justice system.

There Is A Conflict Among The Circuits

There is a direct conflict between the Fifth Circuit

and the Second, Sixth, Ninth and Tenth Circuits regarding

the nature and scope of the prosecutorial immunity doc-

trine.

In Taylor v. Kavanagh the Court of Appeals for the

Second Cireuit held that a state prosecutor was absolutely

immune for alleged misconduct which involved intentional

misrepresentation and failure to comply with the terms of

a plea bargain agreement under the doctrine of prosecu-

torial immunity even though the alleged improprieties of

the prosecutor were illegal and could not be condoned by

the court.

The Ninth Cireuit recently held in Ybarra v. Reno

Thunderbird Mobile Home Village, supra, that a state

prosecutor was entitled to absolute prosecutorial immunity

even though he was accused of destroying exculpatory evi-

dence in connection with a state criminal prosecution and

thereby caused the plaintiff’s wrongful conviction and sub-

sequent incarceration.

The Tenth Circuit has also upheld the doctrine of pro-

secutorial immunity in a fact situation which is substan-

tially similar to the case at bar. In Atkins v. Lanning,

supra, the court held that a state prosecutor was entitled

to absolute immunity where the plaintiff was improperly

arrested under a facially valid warrant for the reason that

the prosecutor was merely engaged in ‘‘preparing and

presenting the state’s case’’ and did not personally partici-

pate in the plaintiff’s arrest.

It is clear, therefore, that a sharp conflict has arisen

between the circuits regarding the nature and scope of the

prosecutorial immunity doctrine. Accordingly, a writ of

certiorari should issue to review the panel decision of the

Fifth Circuit to resolve this conflict with all deliberate

speed.

The Power Of Supervision Should Be Exercised

As set out above. the panel decision of the Fifth Cir-

cuit in the instant case has created a sharp conflict among

the circuits regarding the nature and scope of the prosecu-

torial immunity doctrine. In addition, the court has de-

parted from the customary application of this doctrine by

other panels of the Court of Appeals for the Fifth Cireuit.

In prior decisions other panels of the Fifth Circuit

have held that, even where a prosecutor knowingly used

perjured testimony and deliberately withheld exculpatory

evidence in a criminal prosecution, his immunity from

damages remained intact. Prince v. Wallace, 568 F.2d 1176

(5th Cir. 1976). Moreover, the court has held that the

filing of a criminal information without investigation, fil-

ing charges without jurisdiction and instituting arrest and

search proceedings without probable cause were a neces-

sary and integral part of the prosecutors role which were

protected under the cloak of the immunity doctrine. Hen-

zel v. Gerstein, 608 F.2d 654 (5th Cir. 1978).

In addition to the departure from prior decisions of

the Fifth Circuit regarding the doctrine of prosecutorial

immunity, the panel decision in the instant case has com-

pletely ignored the well-settled state law in Texas which

has held that a District Attorney is a state officer and

therefore insulated from a claim for damages under the

Eleventh Amendment to the United States Constitution.

Indeed, one month following the final determination of the

instant case, the Fifth Circuit, en bane, held that a District

Attorney from Potter County, Texas, was a state official

empowered under Texas law to enforce the state criminal

laws and as such was ‘‘... a state officer seeking to inter-

vene [and] a proper party to do so.’’ Baker v. Wade,

769 F.2d 289, 292 (Sth Cir. 1985).

It is apparent, therefore, that the power of supervision

should be exercised by this Court to correct the inconsis-

tencies created by the panel of the Fifth Circuit in the case

at bar.

The Questions Are Substantial

The doctrine of prosecutorial immunity is absolutely

essential to the proper functioning of our criminal justice

system. It was not created by this Court for the protec-

tion of malicious, corrupt or incompetent prosecutors but

rather, for the protection of the general public whose inter-

est it is that prosecutors should be at liberty to exercise

consequences and make decisions without fear of being

hounded with civil litigation by dissatisfied or embittered

criminal defendants charging malice or wrongdoing.

The departure of the Fifth Circuit from the customary

application of the prosecutorial immunity doctrine in the

instant case may cause the erosion of a state prosecutor’s

immunity in this and other cireuits. As a direct result of

this decision the effectiveness of our criminal justice sys-

tem may be substantially impaired because state prosecu-

tors might be unwilling to file criminal charges against a

criminal suspect for fear of potential civil liability or the

attendant inconveniences of defending a federal lawsuit.

Thus, it is clear that the questions presented herein

are substantial and, accordingly, this Court should grant

certiorari to correct the panel decision of the Court of Ap-

peals for the Fifth Circuit in the case at bar.

ra’

CONCLUSION

For each and all of the foregoing reasons, a writ of

certiorari should issue to review the judgment and opinion

of the Court of Appeals for the Fifth Circuit in the case at

bar.

Respectfully submitted,

Henry WabeE

Criminal District Attorney

Dallas County, Texas

Sue LaGarpE

Chief Felony Prosecutor

Dallas County, Texas

Peter L. Haruan

Assistant District Attorney

Federal Section

Dallas County Courthouse

600 Commerce Street

Dallas, TX 75202

(214) 749-8134

Attorneys for Petitioner

APPENDIX

A-l

APPENDIX A

Stephen C. CRANE, on Behalf of himself

and others similarly situated,

Plaintiff-Appellee-Cross Appellant,

Vv.

STATE OF TEXAS,

Defendant-Appellant,

COUNTY OF DALLAS, Ben Ellis, John Orvis,

Mike Schwille, Berlaind Brashear and Chuck

Miller, Defendants-Appellants-Cross Appellees,

Vv.

Henry WADE and L. E. Murdoch,

Defendants-A ppellees.

No. 83-1650

United States Court of Appeals,

Fifth Cireuit.

May 2, 1985.

Rehearing and Rehearing En Bane

Denied July 22, 1985.

Plaintiff brought action challenging county’s practice

of issuing misdemeanor capias withovt a finding of prob-

able cause. The United States District Court for the

Northern District of Texas, Patrick E. Higginbotham, J.,

denied plaintiff’s request for injunctive relief, but held

that both county and district attorney were immune from

liability for damages, awarding plaintiff only attorney

fees. On appeal, the Court of Appeals, Gee, Circuit Judge,

A-2

held that: (1) county was not immune under the Eleventh

Amendment; (2) Texas law requires issuance of a valid

capias to be preceded by neutral magistrate’s determina-

tion of probable cause; (3) county’s practice of issuing

misdemeanor capias without a finding of probable cause

by a neutral and detached magistrate was unconstitu-

tional under the Fourth Amendment; (4) neither county

nor district attorney was immune from liability for money

damages; and (5) award of attorney fees ran against

the county, not the state.

Affirmed in part; reversed in part.

Amended in part, July 22, 1985.

1. Federal Courts — 265

Eleventh Amendment acts as a jurisdictional bar, and

therefore an assertion of Eleventh Amendment immunity

cannot be ignored, for a meritorious claim ‘o that im-

munity deprives court of subject-matter jurisdiction of

the action. U.S.C.A. Const.Amend. 11.

2. Federal Courts — 270

Claim in civil rights action by county that it was im-

mune under the Eleventh Amendment as an arm or agent

of the state put in question trial court’s jurisdiction over

subject matter of plaintiff’s action against county, and

thus it was incumbent upon trial court to settle the ques-

tion before proceeding further. U.S.C.A. Const.Amend.

11.

3. Federal Courts — 270

Eleventh Amendment immunity does not, as a general

rule, extend to counties. U.S.C.A. Const.Amend. 11.

4. Federal Courts — 270

Any award against county in civil rights suit chal-

lenging county’s practice of issuing misdemeanor capias

without a finding of probable cause would not be de-

rived from state treasury; therefore, exception allowing

county to enjoy Eleventh Amendment immunity for those

cases in which relief granted would run directly against

the state did not apply, and county was not entitled to

Eleventh Amendment protection on that basis. U.S.C.A.

Const.Amend. 11.

5. Federal Courts — 270

Texas counties are not excepted as unique from gen-

eral rule denying Eleventh Amendment immunity to cou-

ties. U.S.C.A. Const.Amend. 11.

6. Criminal Law — 217

Texas law requires issuance of a valid misdemeanor

capias to be preceded by neutral magistrate’s determina-

tion of probable cause.

7. Federal Courts — 411

Civil rights suit challenging county’s practice of is-

suing misdemeanor capias without probable cause was

brought against county officials and relief sought ran

only against county; therefore, district court properly

grounded its holding exclusively on state lav’ after de-

clining to reach federal constitutional issue.

8. Criminal Law — 217

Practice by which county issued misdemeanor capias

without a finding or probable cause as determined by a

A-4

neutral and detached magistrate was unconstitutional un-

der the Fourth Amendment. U.S.C.A. Const.Amend. 4.

9. Federal Courts — 269

State officials partake of the Eleventh Amendment

immunity of states they serve. U.S.C.A. Const.Amend. 11.

10. Federal Courts — 269

Claim that state officials violated state law in carry-

ing out their official responsibilities is a claim against

the state that is protected by the Eleventh Amendment,

even as to a state law claim brought into federal court un-

der pendent jurisdiction. U.S.C.A. Const.Amend. 11.

11. Cwil Rights — 13.7

Where ultimate authority for determining county ca-

pias procedures reposed in the district attorney, an elected

county official, his decisions in that regard constituted

official policy attributable to the county; therefore, coun-

ty was not immune from liability for money damages in

civil rights suit challenging capias practice on basis that

accused practices were neither done for the county nor

subject to its control.

12. Civil Rights — 13.8(6)

Texas statute providing that a district attorney, upon

request, will give an opinion or advice in writing to any

county or precinct officer of the district or county, touch-

ing their official duties, did not render district attorney

immune from liaiblity for money damages in civil rights

suit challenging county’s practice of issuing misdemeanor

capias without a finding of probable cause, where district

attorney himself established procedures to be followed by

A-5

county in issuing misdemeanor capias, and his duty to

establish procedures in accordance with United States

Constitution and laws of Texas was one entirely inde-

pendent of any duty to render legal advice to others. Ver-

non’s Ann.Texas Civ.St. art. 334.

13. Civil Rights — 13.17(11)

Under the Civil Rights Attorney’s Fees Awards Act,

attorney fees are properly assessed against the state when

its officials are sued in their official capacities, and when

their conduct may fairly be said to represent its official

policies. 42 U.S.C.A. § 1988.

14. Ciwil Rights — 13.17(11)

Where plaintiff challenging county’s practice of is-

suing misdemeanor capias without a finding of probable

cause did not sue the individual defendants for actions

taken on behalf of the state, but sued them because of

roles they played in establishing and implementing county

system of issuing misdemeanor capias, and where de-

fendants created that system and controlled it for the

county, not for the state, attorney fees under the Civil

Rights Attorney’s Fees Awards Act ran, not against the

state, but against the county, 42 U.S.C.A. § 1988.

———— —

Earl Luna, Dallas, Tex., for Ellis et al. and Dallas

County.

Jim Mattox, Atty. Gen., Mary F. Keller, Lawrence J.

King, Asst. Attys. Gen., Austin, Tex., for the State of

Texas.

A-6

Peter Lesser, Johnston & Larson, Douglas R. Larson,

Dallas, Tex., for Crane.

Sue L. Lagarde, Asst. Dist. Atty., Dallas, Tex., for

Henry Wade & Larry Murdoch.

Appeals from the United States District Court for the

Northern District of Texas.

Before GEE, WILLIAMS and JOLLY, Circuit

Judges.

GEE, Cireuit Judge:

On behalf of himself and others similarly situated,

Stephen Crane brought an action pursuant to 42 U.S.C. §§

1983, 1988, and the common law of Texas, against the

State of Texas, Dallas County, the judges of the Dallas

County Criminal Courts, the Dallas County Clerk, the

Dallas County Criminal District Attorney, the City of

Dallas, and Civers Dallas police officers. The gravamen

of his complaint was that Dallas County regularly issued

misdemeanor capias without a finding of probable cause

by a neutral and detached magistrate in violation of the

Fourth, Fifth, and Fourteenth Amendments of the United

States Constitution and Article 23.04, Tex.Code Crim.Proce.

Ann. (Vernon). Alternatively, he alleged that articles

23.01 and 23.04 of the Tex.Code Crim.P. were unconstitu-

tional if they allowed a clerk to issue a capias on nothing

more than a District Attorney’s information and affida-

vit. Crane sought declaratory and injunctive relief as

well as monetary damages.

In an Order filed April 30, 1981, the trial court cer-

tified maintenance of the ease as a class action and

granted the motion to dismiss of the State of Texas on

A-7

the ground of the State’s Eleventh Amendment immunity

from suit in the federal courts. The trial court also de-

nied the judges’ motions to dismiss on the ground that

their common law judicial immunity did not extend to

§ 1983 suits seeking equitable relief.

The legality of the challenged practices was consid-

ered separately from Crane’s entitlement to damages. In

an order filed November 30, 1981, the trial court con-

cluded that under Texas law a determination of probable

cause by a neutral magistrate must precede the issuance

of a valid misdemeanor capias; the Dallas practice there-

fore violated Texas law. Defendants were invited to sub-

mit proposals for reform of the Dalias County misde-

meanor capias system. By February 4, 1982, defendants

had done more than submit proposals; they had changed

the County system to ensure that misdemeanor capias is-

sued only after the requisite finding of probable cause by

a properly neutral magistvate. The trial court therefore

denied Crane’s request for injunctive relief.

The remaining issues of damages and attorney’s fees

were tried to a jury. The jury awarded Crane $40,000 in

compensatory damages to be paid by th County and the

District Attorney. It found that District Attorney Wade,

as legal advisor to the County, knew or should have known

that the County capias system infringed Crane’s estab-

lished constitutional rights, but that the police, the City of

Dallas, and Murdoch, the County Clerk, had acted in good

faith and without knowledge of the constitutional infringe-

ment.

The court held, in a memorandum opinion filed March

11, 1982, that the County was immune from liability for

A-8

damages because the illegal practices were not a ‘‘county

policy or custom.” The District Attorney was immune

from liability for damages because he was primarily re-

sponsible to the State and breached no duty he owed to the

County. Crane thus took nothing. He was, however,

awarded attorneys’ fees as a “‘prevailing party” under 42

U.S.C. § 1988. The award was made against the State of

Texas becanse defendants were ‘‘wearing their state hats”

when they performed the acts complained of. The trial

court modified its original order of September 8, 1982;

and, in a memorandum opinion filed July 26, 1983, reduced

the fees to be awarded Crane. The reduction was based on

Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76

L.Ed.2d 40 (1983). All parties appeal from those aspects

of the trial court’s holdings adverse to themselves.

Facts

The facts underlying this action are simple and undis-

puted. lawyer with whom Crane shared office space

listed Crane, without Crane’s knowledge or consent, as an

initial director of Crystal Theater, Inec., in the corpora-

tion’s Articles of Incorporation. The Crystal Theater

showed dirty movies in Dallas. Dallas police visited the

theater and determined its movies to be obscene. Pro-

ceeding solely on the basis of the Articles of Incorpora-

tion, and without further investigation, the Dallas police

prepared a case report charging Crane with distribution

of commercial obscenity, a misdemeanor. The police sent

the report to the Dallas County Criminal District Attor-

ney’s office. The District Attorney’s office decided to

prosecute Crane and prepared an information and accom-

panying affidavit charging him with the misdemeanor of-

A-9

fense. The information and affidavit were filed with the

Dallas County Clerk’s office. The Clerk’s office typed

Crane’s name on a writ of capias form, thereby authoriz-

ing Crane’s arrest, and gave the form to the police, who

duly arrested Crane. He spent about four hours in the

Dallas County jail before being released on bail. The

charges against him were later dismissed for insufficient

evidence at the request of the District Attorney’s office,

which had belatedly discovered Crane’s lack of connection

with the theater. This suit followed.

Eleventh Amendment Immunity

[1,2] Dallas County contended at trial and contends

on appeal that its status as a state agency entitled it to

Eleventh Amendment! immunity from federal suit, and

therefore to dismissal for lack of jurisdiction. The trial

eourt found it unnecessary to decide this question, and

declined to do so. This was error. Because the Eleventh

Amendment acts as a jurisdictional bar, Edelman v. Jor-

dan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662

(1974); Laje v. R. E. Thomason General Hospital, 665

F.2d 724, 726 n. 2 (5th Cir.1982), an assertion of Eleventh

Amendment immunity cannot be ignored, for a meritorious

claim to that immunity deprives the court of subject mat-

ter jurisdiction of the action. Dallas County’s claim of

1V.S. Const. amend, XI provides as follows: “The Judicial

power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.”

The Eleventh Amendment has been held since 1890 to

bar as well federal suits by citizens against their own states.

Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

A-10

Eleventh Amendment immunity as an arm or agent of the

State of Texas, Chiz’s Motel v. Mississippi State Tax

Com’n, 750 F.2d 1305, 1307 (5th Cir.1985); United Caro-

lina Bank v. Board of Regents, 665 F.2d 553, 557 (5th Cir.

1982), thus put in question the trial court’s jurisdiction

over the subject macter of Crane’s action against the

County; it was incumbent upon the trial court to settle

the question before proceeding further. The error was

harmless, however, in view of our conclusion that the im-

munity to federal suit granted by the Eleventh Amend-

ment to the State of Texas does not extend to Dallas

County.

The Supreme Court has “held that the Eleventh

Amendment does not apply to ‘counties and similar mu-

nicipal corporations.’” Pennhurst State School & Hospi-

tal v. Halderman, 465 U.S. 89, — n, 34, 104 S.Ct. 900, 920

n. 34, 79 L.Ed.2d 67, 93 n. 34 (1984), quoting Mt. Healthy

City School District v. Doyle, 429 U.S. 274, 280, 97 S.Ct.

568, 572, 50 L.Ed.2d 471 (1977). In Lake Country Estates,

Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99

S.Ct. 1171, 59 L.Ed.2d 401 (1979), the Supreme Court

stated that it ‘“‘has consistently refused to construe the

[Eleventh] Amendment to afford protection to political

subdivisions such as counties and municipalities, even

though such entities exercise a ‘slice of state power.’” 440

US. at 401, 99 S.Ct. at 1177, citing in support Mt. Healthy;

Moor v. County of Alameda, 411 U.S. 693, 717-721, 93

S.Ct. 1785, 1799-1802, 36 L.Ed.2d 596 (1973), and Lincoln

County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed.

766 (1890). The Lincoln Court explicitly rejected a

county’s assertion of Eleventh Amendment immunity:

[I]t may be observed that the records of this court

for the last thirty years are full of suits against

Pee ee ee mT ee ee eee eee

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A-11

counties, and it would seem as though by general con-

sent the jurisdiction of the federal courts in such suits

had become established. But irrespective of this gen-

eral acquiescence, the jurisdiction of the circuit courts

is beyond question. The Eleventh Amendment limits

the jurisdiction only as to suits against a State.

133 U.S. at 530, 10 S.Ct. at 363. Although the Lincoln

Court acknowledged the Eleventh Amendment as a bar

to suits “in which the State is a real, if not a nominal,

defendant.” it did not place suits against counties in this

eategory :

[W Jhile the county is territorially a part of the State,

yet politically it is also a corporation created by and

with such powers as are given to it by the State. In

respect it is a part of the State only in that remote

sense in which any city, town or other municipal cor-

poration may be said to be a part of the State.

Id, see also Mercer County v. Cowles, 74 U.S. (7 Wall)

118, 122, 19 L.Ed. 86 (1868). Given such unambiguous

pronouncements by the Supreme Court, repeated over so

long ‘a period of time, it is scarcely surprising that other

courts have considered as settled the Eleventh Amend-

ment’s lack of applicability to counties.2 See, e.g., Tuveson

». Florida Governor’s Council on Indian Affairs, Inc., 734

F.2d 730, 732 (11th Cir.1984) (“Eleventh Amendment im-

munity does not extend to independent political entities,

such as counties”); Hall v. Medical College of Ohio, 742

F.2d 299, 301 (6th Cir.1984) (“Municipalities, counties and

2Commentators consider it settled as well. Professor Wright,

for example, flatly states that “[t}he Eleventh Amendment does

not provide immunity for counties and similar municipal coun-

ties.” Wright, Federal Courts § 46, at 274 (1983); see also 1 J.

Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, Moore’s

Federal Practice § 0.60 [2 2] (2d ed. 1984).

A-12

other political subdivisions (e.g., public school districts)

do not partake of the state’s Eleventh Amendment im-

munity”); Fouche v. Jekyll Island-State Park Authority,

713 F.2d 1518, 1520 (11th Cir.1983) (‘‘Eleventh Amend-

ment immunity to suit in federal court applies to states

and state officials but not to municipal corporations,

counties, or other political subdivisions of the state.’’);

Morris v. Washington Metropolitan Area Transtt Author-

ity, 583 F.Supp. 1522, 1524 (D.D.C.1984) (political subdi-

visions such as municipalities and counties not entitled to

invoke Eleventh Amendment immunity); Kenny v. Board

of Trustees, 563 F.Supp. 95, 98 (D.Montana 1983) (‘‘im-

munity provided the states by the Eleventh Amendment

does not extend to counties”); Calkins v. Blum, 511

F.Supp. 1073, 1099 (N.D.N.Y.1981), aff'd, 675, F.2d 44

(2d Cir.1982) (Eleventh Amendment no bar to suit for

damages against county commissioners) ; Woods v. Homes

and Structures of Pittsburg, Kansas, Inc. 489 F.Supp.

1270, 1295-96 (D.Kansas 1980) (“bar of the Eleventh

Amendment does not extend to counties”); High‘teld Wa-

ter Co. v. Public Service Commission, 488 F.Supp. 1176,

1194 (D.Md.1980) (same); Patterson v. Ramsey, 413

F.Supp. 523, 529 (D.Md.1976), aff'd, 552 F.2d 117 (4th

Cir.1977) (same).

There is a similar abundance of authority holding the

Eleventh Amendment inapplicable to counties of particu-

lar states. See, e.g., Heiar v. Crawford County, 746 F.2d

1190, 1194 (7th Cir.1984) (Wisconsin county); Scott v.

Greenville County, 716 F.2d 1409, 1422 (4th Cir.1983)

(South Carolina county); Holley v. Lavine, 605 F.2d 638,

642-45 (2d Cir.1979), cert. denied, 446 U.S. 913, 100 S.Ct.

1843, 64 L.Ed.2d 266 (1980) (New York county); Lenoir

eer

A-13

». Porters Creek Watershed District, 586 F.2d 1081, 1088-

89 (6th Cir.1978) (Tennessee and Mississippi counties) ;

Mackey v. Stanton, 586 F.2d 1126, 1130-31 (7th Cir.1978),

cert. denied, 444 U.S. 882, 100 S.Ct. 172, 62 L.Ed.2d 112

(1979) (Indiana county); Brown v. Marshall County, 394

F.2d 498, 500 (6th Cir.1968) (Kentucky county); Federal

Land Bank v. County Commissioners, 582 F.Supp. 1507,

1512 (D.Colorado 1984) (Colorado county) ; Allsup v.

Knox, 508 F.Supp. 57, 61 (E.D.Ky,1980) (Kentucky

county); Jones v. Houser, 489 F.Supp. 795, 798 (E.D.Mis-

souri 1980) (Missouri county); Obenshain v. Halliday,

504 F.Supp. 916, 952 (E.D.Va.1980) (Virginia county) ;

Knight v. Car.son, 478 F.Supp. 55, 56-97 (E.D.Cal.1979)

(California counties) ; Rafferty v. Prince George's County,

423 F.Supp. 1045, 1058 n. 9 (D.Md.1976) (Maryland coun-

ty).

Acceptance of the general rule excluding counties

from Eleventh Amendment immunity is implicit in a num-

ber of other decisions. See e.g., Campbell v. Pierce Coun-

ty, 741 F.2d 1342 (11th Cir.1984) ; Travelers Indemnity

Co. v. School Board of Dade County, 666 F.2d 505, 509

(ilth Cir.), cert. dented, 459 U.S. 834, 103 S.Ct. 77, 74

L.Bd.2d 74 (1982); Logen v. Shealy, 660 F.2d 1007, 1015

(4th Cir.1981), cert. denied, 445 U.S. 942, 102 S.Ct. 1435, 71

L.Ed.2d 653 (1982) ; Ledford v. Delancey, 612 F.2d 883, 887

(4th Cir.1980). We have recognized this general rule ina

recent ease. Called upon to determine whether the

Eleventh Amendment barred a suit against the Mental

Health and Mental Retardation Authority of Harris

County, Texas, we held that it did not, because ‘‘the record

before us indicates MHMRA is more like a county or city

thar. an arm of the state.” Wheeler v. Mental Health and

A-14

Mental Retardation Authority, 752 F.2d 1063, 1072-73 (5th

Cir. 1985).° District courts in our Circuit have applied

the general rule to Texas counties. £.e, e.g., Johnston v.

Shaw, 556 F.Supp 406, 409 (N.D.Tex.i982)} (citing, among

other cases, Mt. Healthy, Lincoln, and Griffin v. County

School Board of Prince Edward County, 377 U.S. 218, 233,

84 8.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964)) ; Wells v. Hutch-

ison, 499 F.Supp. 174, 204 n. 40 (E.D.Tex.1980) ; Adams v.

Harris County, 316 F.Supp. 938, 944 (S.D.Tex.1970), rev’d

on other grounds, 452 F.2d 994 (Sth Cir.1971), cert. denied,

406 U.S. 968, 92 S.Ct. 2414, 32 L.Ed.2d 667 (1972) (citing,

among other authorities, Lincoln and Wright, supra

n. 2).

[3] We think the authorities cited above establish

without question that Eleventh Amendment immunity does

not, as a general rule, extend to counties. We are further

persuaded that no exception should be made to this rule

without convincing evidence distinguishing the county in

3Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.1980), is

consistent with the general rule we state here. In that case,

we held the Hondo Independent School District liable and

Medina County not liable for damages under § 1983 because

the policy at issue could be attributed to the former but not

to the latter. We then continued,

Though logic would seem, then, to impel a finding

of liability against the State—since the statute obviously

represents the official policy of the State—the State enjoys

immunities not shared by its two political subdivisions.

~ In addition to a state’s traditional sovereign immunity, the

Eleventh Amendment and its judicial gloss also prohibit

private actions for damages against state in federal court.

619 F.2d at 404 (emphasis added) (footnotes omitted). The clear

import of this language is that the State’s Eleventh Amendment

ee extends neither to the School District nor to the

ounty.

A-15

question from counties generally. Dallas County has pro-

duced no such evidence.*

[4] The Supreme Court has recognized an exception

to the general rule denying Eleventh Amendment immunity

to counties for those cases in which the relief granted

would run directly against the state. Pennhurst, 465 U.S.

at — n. 34, 104 S.Ct. at 920 n. 34, 79 L.Ed.2d at 93 n. 34;

compare Lake County Estates, 440 U.S. at 401, 99 S.Ct. at

1177 (exception applies to state agencies, not to counties) ;

see also Wheeler, 752 F.2d at 1073 (agency would be im

mune “if payment of the judgment were to be made direct-

ly from the state treasury”) (emphasis added). We there-

fore agree with Dallas County that the most crucial factor

to be considered in determining the County status is

‘‘whether the funds to defray any award would be de-

rived from the state treasury.” Laje, 665 F.2d at 727. The

County argues that it falls within this exception to the

4The County’s reliance on Doe v. Sullivan, 472 F.Supp. 975

(W.D.Tex.1979), is misplaced. The Doe court held El Paso

County immune under the Eleventh Amendment on the sole

basis of Texas state cases, the most recent decided in 1937,

describing Texas counties as arms of the state. This was error.

Although a federal court dealing with a federal right is not re-

quired to ignore state law; “(m)unicipal defenses—including

an assertion of sovereign immunity—to a federal right of action

are, of course, controlled by federal law.” Owen v. City of

Independence, 455 U.S. 622, 647 n. 30, 100 S.Ct. 1398, 1413

n. 30, 63 L.Ed.2d 673 (1980), citing Fitzpatrick v. Bitzer, 427 U.S.

455, 455-56, 96 S.Ct. 2666, 2671-72, 49 L.Ed.2d 614 (1976);

see also Monell v. New York City Department of Social Serv-

ices, 436 U.S. 658, 695 n. 59, 98 S.Ct. 2018, 2038 n. 59, 56 L.Ed.

2d 611 (1978) (it has never been the law that state law im:

munities override § 1983 causes of action). Because Doe failed

utterly to include in its analysis the applicable federal cases,

most conspicuously, for reasons discussed above, Moor v.

County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d

596 (1973), and Avery v. Midland County, Texas, 390 U.S. 474,

88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), we explicitly overrule it.

A-16

rule because Texas law ‘‘declares all property in the hands

of counties to belong to the state itself, Robbins v. Lime-

stone County, 114 Tex. 345, 268 S.W. 915 (1925), and

Baker v. Dunning, 77 Tex. 28, 13 S.W. 617, 618 (1890)

(‘‘counties ... hold their property, as they hold their ex-

istence, at the will of the state... and... it is subject

to be resumed by the state at its pleasure”). We are not

persuaded.

First, the County has not shown that a different re-

lationship obtains between other states and their counties.

Second, the County’s proposition is unsupported by either

Texas statutes or the Texas Constitution; the cases cited

support the proposition only insofar as the county holds

the property at issue as an agent of the state. It is clear,

from Dallas County’s own authorities, that not all county

property is so held. The Texas Supreme Court stated in

Baker that ‘‘[{i]Jn Milam Co. v. Bateman, 54 Tex. 153, it

was held that the state eould not take from the counties

the lands which had been donated to them for educational]

purposes. We are of the opinion that that decision should

be adhered to.” 13 S.W. at 618. There is language in

Robbins to similar effect: ‘‘If the title and ownership of

the public roads reposes in the counties under the Consti-

tution, and if they are property of the counties, then they

would have the right to control them, and certainly the

state, or any other power, would have no right to take them

in any manner, except and unless compensation should be

made therefor.” 268S.W. at 918. Nothing in either of these

cases, or in any of the other authorities cited by the County,

suggests that the State may seize at will funds raised by

the County through properly authorized taxation, bond is-

sues, or sale of property.

EEE EEO EOE eee

A-17

Third, the position taken by Dallas County here is

patently inconsistent with its position in Barrett v. Thomas,

649 F.2d 1193 (5th Cir.1981), cert. denied, 456 U.S. 925,

102 8.Ct. 1969, 72 L.Ed.2d 440 (1982). The County moved

to intervene in Barrett’ on the ground that ‘‘an adjudica-

tion of Thomas’s liability in its absence would impair its

interest in protecting the County treasury against the

plaintiffs’ claims.” 649 F.2d at 1197. The County now sug-

gests that its treasury belongs to the state, and effectively

disavows any interest in it. We find this abrupt volte-

face unconvincing; it is unlikely in the extreme that the

County made the significant expenditures of time and

money required by its multiple appeals in Barrett in order

to protect the state’s property.® Dallas County’s conten-

tion is further refuted by our conclusion in Barrett that

“t]he district court has ample authority to bind Dallas

County by its order to require payment from County

funds.” 649 F.2d at 1206 (emphasis added). Our belief

sWhen the trial court denied the motion, the County con-

sidered the matter sufficiently important to pursue an inter-

locutory appeal to this Court, which affirmed the denial, and

then to petition the Supreme Court for a writ of certiorari,

which the Court denied. Weber v. Barrett, 450 U.S. 1022, 101

S.Ct. 1729, 68 L.Ed.2d 218 (1981). The County did not, appar-

ently, believe that the Eleventh Amendment presented a bar

to its participation in Barrett as a party defendant.

6City of Waco v. Bridges, 710 F.2d 220 (Sth Cir.1983), cert.

denied, — U.S. —, 104 S.Ct. 1414, 79 L.Ed.2d 741 (1984), is also

persuasive authority against the County’s position. In that case,

McLennan County intervened to assert a claim to money found

by two boys. The IRS and the State of Texas also claimed the

money. The trial court first rejected the IRS claim, and then

held that “as between the State and the County, the money

was peyable to the County,” 710 F.2d at 224; we affirmed the

trial court’s holding. Waco makes no sense whatsoever if Texas

counties can have no property of tneir own distinct from that

of the State.

A-18

in the character of such funds is unshaken by the argu-

ments made here by the County. We therefore find that

an award against Dallas County is not an impermissible

award against the state, and that the funds to defray such

an award would not be derived from the state treasury.’

Dallas County’s attempt to bring itself within the ‘‘state

treasury” exception to the general rule against extending

Eleventh Amendment protection to counties must there-

fore fail.

[5] Dallas County also asserts entitlement to Eleventh

Amendment immunity on another ground. The County

claims that Texas counties are unique and ought therefore

to be excepted from the general rule denying Eleventh

Amendment immunity to counties. In support of this as-

sertion, the County offers a number of quotations from

Texas state cases of decidedly antique vintage,’ of which

this language from Bexar County v. Linden, 110 Tex. 339,

220 S.W. 761 (1920), is typical :

[Counties] are essentially instrumentalities of the

State. They are the means whereby the powers of the

7We note that our finding accords with the position taken

in this litigation by the State of Texas which, while not conclu-

sive, is certainly entitled to some weight. See Moor, 411 U.S.

at 720-21, 93 S.Ct. at 1801-02. The State maintained that Texas

counties are fiscally autonomous, noting that under the Texas

Constitution and Texas statute counties “raise revenues through

the issuance of bonds, the purchase and sale of property, fees

for services, the collection of taxes and fines levied,’ keep such

revenues in the county treasury, and disperse them at the di-

rection of the county commissioners court.

8Including, among others, Childress County v. State, 127

Tex. 343, 92 $.W.2d 1011 (1936); Heigel v. Wichita County, 84

Tex. 392, 19 S.W. 562 (1892); City of Galveston v. Posnainsky,

62 Tex. 118 (1886); and Chambers v. Gilbert, 17 Tex.Civ.App.

106, 42 S.W. 630 (Tex.Civ.App.—1897, writ ref’d).

A-19

State are exerted through a form and agency of local

government for the performance of those obligations

which the State owes the people at large. They are

created by the sovereign will without any special re-

gard to the will of those who reside within their lim-

its. Their chief purpose is to make effective the civil

administration of the State government. The policy

which they execute is the general policy of the State.

Through them the powers of government operate upon

the people and are controlled by the people. They are

made use of by the State for the collection of taxes,

for the diffusion of education, for the construction and

maintenance of public highways, and for the care of

the poor. All of these things are matters of state, as

distinguished from municipal, concern. They intimate-

ly affect all the people. The counties are availed of as

efficient and convenient means for the discharge of

the State’s duty in their regard to all the people.

220 S.W. at 762.

As evidence of the uniqueness of Texas counties, Bexar

is singularly unconvincing. There is nothing in the passage

quoted above, or in any of the authorities cited by Dallas

County, to distinguish Texas counties from counties gener-

ally, which were described by the Supreme Court in Rey-

nolds v. Sims 377 U.S. 533, 84 S.Ct. 1862, 12 L.Ed.2d 506

(1964), as follows:

Political subdivisions of States — counties, cities,

or whatever — never were and never have been con-

sidered as sovereign entities. Rather, they have been

traditionally regarded as subordinate governmental

instrumentalities created by the State to assist in the

carrying out of state governmental functions. As

stated by the Court in Hunter v. City of Pittsburgh,

207 U.S. 161, 178, 52 L.Ed. 151, 159, 28 S.Ct. 40 [46],

these governmental units are ‘‘created as convenient

agencies for exercising such of the governmental pow-

ers of the State as may be entrusted to them,” and

A-20

the ‘‘number, nature and duration of the powers con-

ferred upon [them] ... and the territory over which

they shall be exercised rests in the absolute discre-

tion of the State.” The relationship of the States to

the Federal Government could hardly be less ana-

logous.

377 U.S. at 575, 84 S.Ct. at 1388. Moreover, in vacating the

judgment of the Texas Supreme Court in Avery v. Midland

County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968),

the Supreme Court implicitly rejected the claim of unique-

ness made here by Dallas County:

The Texas commissioners courts are assigned some

tasks: which would normally be thought of as ‘‘legisla-

tive,” others typically assigned to ‘‘executive” or “ad-

ministrative” departments, and still others which are

‘*judicial.” In this regard Midland County’s Commis-

stoners Court is representative of most of the general

governing bodies of American cities, counties, towns,

and villages. One knowledgeable commentator has

written of ‘‘the states’ varied, pragmatic approach in

establishing governments.” R. Wood, in Politics and

Government in the United States 891-892 (A. Westin

ed. 1965). That approach has produced a staggering

number of governmental units — the preliminary cal-

culation by the Bureau of the Census for 1967 is that

there are 81,304 ‘‘units of government” in the United

States—and an even more staggering diversity. None-

theless, while special-purpose organizations abound

and in many States the allocation of functions among

units results in instances of overlap and vacuum, vir-

tually every American lives within what he and his

neighbors regard as a unit of local government with

general responsibility and power for local affairs.

In many cases citizens reside within and are subject

to two such governments, a city and a county. The

Midland County Commissioners Court is such a unit.

A-21

390 U.S. at 482-83, 88 S.Ct. at 1119-20 (emphasis added)

(footnotes omitted). Further, the attributes of Texas coun-

ties, as enumerated in Avery, 390 U.S. at 483-84, 88 S.Ct.

at 1119-20, and as provided by Texas law, are virtually in-

distinguishable from those of California counties, as de-

scribed in Moors

Most notably, under California law a county is

given ‘‘corporate powers” and is designated a “body

corporate and politic.” In this capacity, a county may

sue and be sued, and, significantly for purposes of

suit, it is deemed to be a ‘‘local public entity” in con-

trast to the State and state agencies. In addition, the

county, and from all that appears the county alone, is

liable for all judgments against it and is authorized

to levy taxes to pay such judgments. A California

county may also sell, hold, or otherwise deal in prop-

erty, and it may contract for the construction and re-

pairs of structures. The counties also are authorized

to provide a variety of public services such as water

service, flood control, rubbish disposal, and harbor

and airport facilities. Financially, the counties ave

empowered to issue general obligation bonds payable

from county taxes.

411 U.S. at 719-20, 93 S.Ct. at 1800-01 (footnotes omitted).

It does not appear that Texas counties lack even one of

these attributes.? Thus, because Texas counties are not

°Texas counties are bodies corporate and public. Tex.Rev.

Civ.Stat.Ann. art. 1572 (Vernon 1962). They may sue and be

sued, arts. 1573, 1579; O’Quinn v. McVicker, 428 S.W.2d 111,

112 (Tex.Civ.App.—Beaumont 1968, no writ). Texas counties

agencies, Tex.Const. art. XI, §§ 1, 3; Tex.Rev.Civ.Stat.Ann. arts.

are considered units of local government rather than state

4413 (32b); 6252-18a(b)(2); 6252-19, § 2(1). They are liable for

judgments against them and may levy taxes to pay such judg-

ments, arts. 1575, 6252-19, § 11; County of Brazoria v. Radtke,

(Continued on following page)

A-22

unique, but instead share all the characteristics of Cali-

fornia counties and, under Reynolds, of counties generally,

we conclude, as did the Supreme Court in Moor, that Texas

counties are not mere arms or agents of the state; they are

independent units of local government to which the immu-

nity granted by the Eleventh Amendment does not apply.

We therefore reject the claim of Dallas County to such

immunity and hold it subject to suit in federal court.'°

This holding necessarily disposes of Dallas County’s

contention that it is not a ‘‘person” within the meaning of

42 U.S.C. § 1983; under Monell v. New York City Depart-

(Continued from previous page)

566 S.W.2d 326, 328 (Civ.App.—Beaumont 1978, writ ref’d

n.r.e.). Texas counties may buy, sell, hold, or otherwise deal in

property, arts. 1576, 1577, and may enter into contracts, art.

1578, including contracts for the construction and repair of

structures, art. 2307b; County Commissioners Court v. Williams,

638 S.W.2d 218, 222-23 (Tex.App.—tastland 1982), writ ref’d

n.r.e. per curiam, 655 S.W.2d 206 (Tex.1983). They may issue

bonds, arts. 1644c-1, 1666a(c); Avery, 390 U.S. at 483, 88 S.Ct.

at 1119, and provide a variety of public services, including air-

ports, art. 1581d; flood control, art. 1581e; libraries, art. 1696b;

and parks, art. 6081; see Avery, 390 U.S. at 484, 88 S.Ct. at 1120.

10Our holding is not inconsistent with Van Ooteghem v.

Gray, 654 F.2d 304 (5th Cir.1981) (en banc). In that case, we

pretermitted the issue of Texas county entitlement to Eleventh

Amendment immunity. On remand, the district court deter-

mined that the Eleventh Amendment did not confer immunity

on Harris County, 584 F.Supp. 897, 898 (S.D.Tex.1984). It

reached this determination by applying to the County the prin-

ciples established by this Court in Laje, 665 F.2d at 727. We

are persuaded by our review of the relevant case law and au-

thorities that the general rule denying Eleventh Amendment

immunity to counties and other municipal corporations is suf-

ficiently well established to render application of the Laje

criteria unnecessary with regard to such units of local govern-

ment, absent convincing evidence indicating that the entity in

question is indeed atypical, or that the “state treasury” ex-

ception to the general rule may apply.

A-23

ment of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56

L.Ed.2d 611 (1978), a unit of local government not pro-

tected by the Eleventh Amendment is such a person. 436

U.S. at 690 and n. 54, 98 S.Ct. at 2035 and n. 54."

The Dallas County System

[6] Dallas County and its judges also assign as error

the trial court’s holding, in its Memorandum Order of No-

vember 30, 1981, that Texas law requires issuance of a

valid capias to be preceded by a neutral magistrate’s de-

termination of probable cause. Because Texas courts have

the final authority to interpret Texas legislation, Brown

v. Ohto, 432 U.S. 161, 167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d

"The defendant judges of the Dallas County Criminal

Courts joined with Dallas County in claiming entitlement to

Eleventh Amendment immunity. Insofar as they sought to de-

rive such immunity from the County, their claim must plainly

fail with that of the County. Monell, 436 U.S. at 690 n. 55, 98

S.Ct. at 2035 n. 55. The judges also contend that they are not

“persons’”’ under § 1983. The Supreme Court’s recent decision

in Pulliam v. Allen, — U.S. —, 104 S.Ct. 1970, 80 L.Ed.2d 565

(1984), settles this question. In Pulliam, an action brought un-

der § 1983, the Court held that judicial immunity bars neither

prospective injunctive relief nor the award of attorneys’ fees

under § 1988. That state judges are “persons” for § 1982 pur-

poses is clearly implicit in this holding. Further, our own cases

establish that state court judges are not immune from federal

suits seeking equitable or declaratory relief. Ciudauwanos Uni-

dos de San Juan v. Midalgo County Grand Jury Commissioners,

622 F.2d 807, 813 n. 16 (5th Cir.1980), cert. denied, 450 U.S.

964, 101 S.Ct. 1479, 67 L.Ed.2d 613 (1981) (§ 1983 action against

state judges); Sparks v. Duval County Ranch Co., Inc., 604 F.2d

976, 980-81 (5th Cir. 1979) (en banc), aff’d sub nom Dennis v.

Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980).

In any event, the ground of the judges’ appeal is by no

means clear. They have been assessed neither with damages

nor with attorneys’ fees; no declaratory or injunctive relief has

been granted against them. We are thus at a loss as to what

the judges are appealing from.

A-24

187 (1977); Birmingham Fire Insurance Co. v. Winegard-

ner and Hammons, Inc., 714 F.2d 548, 550 (5th Cir.1983),

we must look to the decisions of Texas courts in our re-

view of this holding; ‘‘the latest and most authoritative

expression of state law applicable to the facts of the case

is controlling.” Brumley Estate v. Iowa Beef Processors,

Inc., 715 F.2d 996, 997 (5th Cir.1983), cert. denied, — U.S.

—, 104 S.Ct. 1288, 79 L.Ed.2d 690 (1984). There is little

difficulty in applying these principles here, for in Sharp

v. State, 677 S.W.2d 513 (Tex.Crim.App.1984), the Texas

Court of Criminal Appeals, sitting en bane, explicitly ap-

proved the trial court’s interpretation of the Texas statu-

tory scheme for issuing capias. In its opinion, the Texas

court quoted extensively from the Crane court’s Novem-

ber Order:

In Crane, Judge Higginbotham addressed the require-

ment for a probable cause determination prior to the

issuance of a misdemeanor capias under Texas, read in

its proper matrix of common law and constitutional

standards.

Although recognizing that the Texas statutory scheme

authorizing capias does not by its express terms require

a probable cause determination :

‘*Article 23.04 of the Texas Criminal Code provides

that ‘[i]n misdemeanor cases the capias or summons

shall issue from a court having jurisdiction of the

ease.’ At the same time, Article 23.03 provides that ‘A

capias shall be immediately issued by the district clerk

upon each indictment for felony presented. .. .’ (em-

phasis supplied). As will be seen, this difference be-

tween 23.03 and 23.04 makes sense when read against

the common law rules, and the Texas rules, of arrests

for misdemeanors and felonies and explains Article

23.01 which defines capias . . . ‘as a writ issued by the

A-25

court or clerk, and directed to any peace officer of the

State of Texas, commanding him to arrest a person

accused of an offense and bring him before that court

immediately. ...’ The explanation is that the scheme

presupposes an awareness that valid capias can issue

only upon properly determined probable cause. In

the case of a felony that determination is made by the

grand jury in its decision to indict and it may be

issued by the court clerk. With a misdemeanor capias

issues not from a County Clerk but from a court with

jurisdiction over the case. I conclude then that Texas

law requires that to be valid a misdemeanor capias

must be issued from a court with jurisdiction over the

case after a determination by a neutral magistrate of

probable cause.” Jd. at page 5.

Judge Higginbotham’s conclusion is inescapably cor-

rect, and we adopt it as our own. To do otherwise would

render the statutory scheme unconstitutional.

677 S.W.2d at 517-18 (emphasis in original). This language

is clearly dispositive of the County’s contention; the trial

court did not err in its reading of Texas law.

[7] The County and its judges next argue that the

capias procedures used in Dallas County to arrest people

were not unconstitutional. It is not clear that this poini is

properly before this Court. In accordance with the gen-

eral rule, established in Siler v. Louisville € Nashville Rail-

road Co., 213 U.S. 175, 192-93, 29 S.Ct. 451, 455-56, 53 L.Ed.

753 (1909), that ‘‘a federal court should decide a case on

state-law grounds where possible to avoid a federal con-

stitutional question,” Pennhurst, 465 U.S. at —, n. 28, 104

S.Ct. at 918 n. 28, 79 L.Ed.2d at 90 n. 28, the trial court

declined to reach the constitutional issue in this case and

grounded its holding exclusively on state law. This was

not necessarily error under Pennhurst. That case explicit-

sii

A-26

ly affirmed ‘‘the desirability of applying the Siler principle

in cases where the federal court has jurisdiction to decide

the state-law issues.” Id. Pennhurst deprives a federal

court of such jurisdiction, and displaces the Siler rule, in

only those instances where the claim is against state of-

ficials to whom the Exparte You~g"™ exception to Eleventh

Amendment immunity would otherwise apply, and in which

the relief granted would run against the state:

[A] federal suit against state officials on the basis of

state law contravenes the Eleventh Amendment when

~~ as here — the relief sought and ordered has an im-

pact directly on the State itself.

Pennhurst, 465 U.S. at —, 104 S.Ct. at 917, 79 L.Ed.2d at

89. Crane’s action is not governed by Pennhurst because,

as discussed below, it was brought against County officials,

and because the relief sought ran only against the County.

The manner in which the Supreme Court dealt with the

defendant county officials in Pennhurst supports this con-

clusion.’ Relief was denied against these defendants not

because they were protected by the Eleventh Amendment,”

but rather because ‘‘any relief granted against the county

officials on the basis of the state statute would be partial

and incomplete at best.” 465 U.S. at —, 104 S.Ct. at 921,

79 L.Ed.2d at 94. The relief sought in Crane presented no

such problems. We therefore hold that Pennhurst did not

divest the trial court of jurisdiction to determine whether

12209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

133A fair reading of the Court's discussion of this point, and

one consistent with Mt. Healthy and Lake Tahoe, suggests that

the county defendants would have been entitled to Eleventh

Amendment immunity only if such immunity were required to

protect the state treasury. Pennhurst, 465 U.S. at — n. 34, 104

S.Ct. at 920-921 n. 34, 79 L.Ed.2d at 93-94 n. 34.

A-27

the challenged Dallas County procedures violated Texas

law, and affirm the trial court’s conclusion that they did so.

This holding does not, however, allow us to ignore the

constitutional question presented. Although the matter is

far from clear, it appears that the damages awarded Crane

by the jury were $1983 damages, rather than damages

stemming from Crane’s pendant state law claims. We infer

this from the trial court’s statement that ‘‘[o]n March 11,

1982, the Court held that Dallas County was not liable for

§ 1983 damages because the accused practices were imple-

mented by officers wearing their state badges and thus

did not constitute official County policy under Monell v.

Department of Social Services, 436 U.S. [658] 568 [98

S.Ct. 2018, 56 L.Ed.2d 611] (1978).” Memorandum Order

of July 26, 1983 at 2. Inasmuch as Monell has no conceiv-

able application to state law causes of action, and thus could

not constitute a bar to recovery of damages arising under

state law, it must follow that the injury for which the jury

awarded Crane damages was one cognizable under § 1983.

It is axiomatic that § 1983 damages can derive only from

deprivations of rights secured by the Constitution or laws

of the United States. A finding that the Dallas County pro-

cedures deprived Crane of such rights was therefore a pre-

requisite to an award to him of damages under § 1983.

Although the trial court made no such finding explicit-

ly, the required finding may be implicit in the trial court’s

Order of November 30, 1981:

The Fourth Amendment provides that “no war-

rant shall issue except on probable cause.” As part of

this guarantee a warrant for arrest is to be issued only

after a detached and neutral magistrate, Coolidge v.

New Hampshire, 403 U.S. 443, 444-53 [91 S.Ct. 2022,

A-28

2026-31, 29 L.Ed.2d 564] (1971), determines that there

is probable cause to issue it. Aquilar v. Texas, 378 U.S.

108 [84 S.Ct. 1509, 12 L.Ed.2d 723] (1964) ; Gtordenello

v. U.S., 357 U.S. 480 [78 S.Ct. 1245, 2 L.Ed.2d 1503]

(1958).

The procedure which Dallas County has followed

in issuing misdemeanor capias would not meet this

requirement if the state statutes were read as per-

mitting a capias to iscue without determining prob-

able cause. Specifically, this requirement of probable

cause is not met when, as is the case in Dallas County,

an assistant clerk in the Criminal Processing Section

of the County Clerk’s office transfers (types) the in-

formation from an affidavit provided by the District

Attorney to a document (capias) authorizing an ar-

rest and signs that document in her name or the name

of another clerk.

Memorandum Order of November 30, 1981 at 6 (footnote

omitted).

That the trial court found the Dallas County practices

to deprive Crane of federally guaranteed rights seems also

to be implicit in the special interrogatories submitted to

the jury. Two of these interrogatories asked the jury to de-

termine whether the County Clerk and the County Criminal

District Attorney, in their respective official capacities,

‘*knew, or should have known, that the procedure followed

in the issuing of capias infringed a clearly established con-

stitutional right of Stephen Crane.”

These questions, and the award of § 1983 damages to

Crane, plainly pre-suppose a finding by the trial court that

the challenged practices were in fact unconstitutional. De-

spite the absence of an explicit finding to that effect, we

are persuaded that one may be inferred from the trial

court’s Memorandum Order of November 30, 1981; given

A-29

the trial court’s admirable analysis of the constitutional

issue in that Order, no remand is necessary. See Gulf Tow-

ing Company, Inc. v. Steam Tanker, Amoco New York,

648 F.2d 242, 245 (Sth Cir.1981) (remand not required if

complete understanding of issues is possible and there is

sufficient basis for appelate court’s consideration of mer-

its). We will therefore consider the County’s contention

that the Dallas County procedures passed constitutional

muster.

This contention is grounded on Gerstein v. Pugh, 420

U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The County

construes Gerstein to permit arrests without prior judicial

determinations of probable cause, so long as such determi-

nations are made before extended restraints of liberty after

arrest. Because the Dallas County procedures provided,

at least in theory, for post-arrest judicial determinations of

probable cause, the County argues that they satisfied the

constitutional requirements established in Gerstein. We

disagree. The petitioners in Gerstein were arrested with-

out warrants on felony charges. Gerstein, 420 U.S. at 116-

17 and n. 18, 95 S.Ct. at 864-65 and n. 18. Thus, as the trial

court correctly noted, ‘‘[i]mplicit in the Court’s analysis

in Gerstein is the premise that review by a neutral magis-

trate of any probable cause to arrest for a felony com-

mitted outside an arresting officer’s presence need not

precede the arrest. Gerstein thus accepts the validity of a

warrantless arrest upon probable cause for a felony and

addresses the adequacy of its post-arrest review.” Memo-

randum Order of November 30, 1981, at 12. In so doing,

the Gerstein Court was scarcely breaking new ground; it

has been established for centuries that felony arrests may

be made without warrants upon probable cause. It is equal.

A-30

ly well established that the rule is otherwise for misdemea-

nor arrests. The Supreme Court explained the distinction

in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69

L.Ed. 543 (1925):

The usual rule is a police officer may arrest without

warrant one believed by the officer, upon reasonable

cause, to have been guilty of a felony, and that he may

only arrest without a warrant one guilty of a misde-

meanor if committed in his presence. Kurtz v. Mof-

fitt, 115 U.S. 487, 29 L.Ed. 458, 6 Sup.Ct. Rep. 148;

Bad Elk v. United States, 177 U.S. 529, 44 L.Ed. 874,

20 Sup. Ct. Rep. 729. The rule is sometimes expressed

as follows:

‘*In cases of misdemeanor, a peace officer, like a

private person, has at common law no power of arrest-

ing without a warrant except when a breach of the

reasonable ground for supposing that a breach of

peace is about to be committed or renewed in his pres-

ence.” 9 Laws of England (Halsbury), part ITI.612.

The reason for arrest for misdemeanors without

warrant at common law was promptly to suppress

breaches of the peace (1 Stephen, History of Crimi-

nal Law, 193), while the reason for arrest without

warrant on a reliable report of a felony was because

the public safety and the due apprehension of crimi-

nais charged with heinous offenses required that such

arrests should be made at once without warrant. Ro-

han v. Sawin, 5 Cush. [Mass]. 281.

267 U.S. at 156-57, 45 S.Ct. at 286-87. The law has not

clianged since Carroll; its statement of the “usual rule”

was quoted with approval by the Supreme Court in Umited

States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 824, 46

L.Ed.2d 598 (1976). The context in which this quotation

appeared is relevant here. It was preceded by the state-

ment that “there is nothing in the Court’s prior cases

A-31

indicating that under the Fourth Amendment a warrant

is required to make a valid arrest for a felony.” 423 U.S.

at 416-17, 96 S.Ct. at 824-95 (emphasis added), Tt was

followed by a review of the Court’s decisions involving

warrantless felony arrests, including Gerstein, 423 U.S. at

417-18, 96 S.Ct. at 825-26. The Watson Court then enun-

ciated the principle governing these decisions:

The cases construing the Fourth Amendment thus re-

flect the ancient common-law rule that a peace officer

was permitted to arrest without a warrant for a mis-

demeanor or felony committed in his presenee as

well as for a felony not committed in his presence if

there was reasonable grounds for making the arrest.

10 Halsbury’s Laws of England 344-345 (3d ed 1955) ;

4 W. Blackstone, Commentaries * 292; 1 J. Stephen, A

History of the Criminal Law of England 193 (1883) ;

2M. Hale, Plea of the Crown "72-74; Wilgus, Arrest

Without a Warrant, 22 Mich L Rev, 547-550, 686-688

(1924); Samuel v. Payne, 1 Doug] 359, 99 Kng Rep

230 (KB 1780); Beckwith v. Philby, 6 Barn & Cress

30, 108 Eng Rep 585 (KB 1827). This has also been

the prevailing rule under state constitutions and sta-

tutes. ‘‘The rule of the common law, that a peace

officer or a private citizen may arrest a felon without

a warrant, has been generally held by the courts of

the several States to be in force in cases of felony

punishable by the civil tribunals.” Kurtz v. Moffitt,

115 US 487, 504, 29 Ed 458, 6 SCt 149 [154] (1885).

423 U.S. at 418-19, 96 S.Ct. at 825-26. After a review of

state cases following the same principal, the Court con-

eluded,

The balance struck by the common law in general-

ly authorizing felony arrests on probable cause, but

without a warrant, has survived substantially intact.

It appears in almost all of the States in the form of

express statutory authorization. In 1963, the Ameri-

A-32

can Law Institute undertook the task of formulating

a model statute governing police powers and practice

in criminal law enforcement and related aspects of

pretrial procedure. In 1975, after years of discussion,

A Model Code of Prearraignment Procedure was pro-

posed. Among its provisions was § 120.1 which auth-

orizes an officer to take a person into custody if the

officer has reasonable cause to believe that the person

to be arrested has committed a felony, or has com-

mitted a misdemeanor or petty misdemeanor in his

presence. The commentary to this section said: ‘“The

Code thus adopts the traditional and almost universal

standard for arrest without a warrant.”

This is the rule Congress has long directed its

principal law enforcement officers to follow.

423 U.S. at 421-23, 96 S.Ct. at 826-28 (footnotes omitted).

Watson thus places Gerstem squarely amongst cases

decided on the basis of the general rule permitting war-

rantless felony arrests upon probable cause. Given the

validity of such arrests, it follows inescapably that judi-

cial determinations of probable cause may follow, rather

than precede, them. Nothing compels a similar conclu-

sion as to misdemeanor arrests. The general rule re-

quires that they be made upon warrants, unless the of-

ficer has witnessed the offense; the warrant requirement

is meaningless absent a judicial determination of probable

cause. The Supreme Court has recognized this truth on

iuany oecasions. In Mclonald v. United States, 335 U.S.

451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), the Court stated,

We are not dealing with formalities. The presence of

a search warrant serves a high function. Absent some

grave emergency, the Fourth Amendment has inter-

posed a magistrate between the citizen and the police.

This was done not to shield criminals nor to make the

home a safe haven for illegal activities. It was done

Se a ee ae. Se

A-33

so that an objective mind might weigh the need to in-

vade that privacy in order to enforce the law. The

right of privacy was deemed too precious to entrust

to the discretion of those whose job is the detection

of crime an“ the arrest of criminals. Power is a

heady thing; and history shows that the police acting

on their own cannot be trusted. And so the Constitu-

tion requires a magistrate to pass on the desires of

the police before they violate the privacy of the home.

335 US. at 455-56, 69 S.Ct. at 193-94 (emphasis added).

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.

2d 576 (1967), is to similar 2ftect:

“Over and again this Court has emphasized that the

mandate of the [Fourth] Amendment requires adher-

ence to judicial processes.” United States v. Jeffers,

342 U.S. 48, 51, 96 L.Ed. 59, 64, 72 S.Ct. 93 [95], and

that searches conducted outside the judicial process,

without prior approval by judge or magistrate are

per se unreasonable under the Fourth Amendment—

subject only to a few specifically established and well-

delineated exceptions.

389 U.S. at 357, 88 S.Ct. at 514 (footnote omitted). The

same point is clearly stated in Shadwick v. City of Tampa,

407 U.S. 345, 92'S.Ct. 2119, 32 L.Ed.2d 783 (1972):

The warrant traditiona’ has represented an inde-

pendent assurance that a search and arrest will not

proceed without probable cause to believe that a crime

has been committed and that the person or place

named in the warrant is involved in the crime.

407 U.S. at 350, 92 S.Ct. at 2122. United States v. United

States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.

2d 752 (1972), is particularly relevant here, for in that

case the Court rejected the government’s argument that

after-the-fact judicial review could be substituted for prior

judicial determination of probable cause. Because of its

A-34

relevance, the Court’s discussion merits quotation at some

length:

The warrant clause of the Fourth Amendment is not

dead language. Rather, it has been “a valued part

of our constitutional law for decades, and it has de-

termined the result in scores and scores of cases in

courts all over this country. It is not an inconveni-

ence to be somehow ‘weighed’ against the claims of

police efficiency. It is, or should be, an important

working part of our machinery of government, oper-

ating as a matter of course to check the ‘well-inten-

tioned but mistakenly overzealous executive officers’

who are a part of any system of law enforcement.”

Coolidge v. New Hampshire, 403 U.S. at 481 [91 S.Ct.

at 2046], 29 L.Ed.2d at 592.

Over two centuries ago, Lord Mansfield held that

common-law principles prohibited warrants that or-

dered the arrest of unnamed individuals whom the

officer might conclude were guilty of seditious libel.

‘*It is not fit,” said Mansfield, “that the receiving or

judging of the information should be left to the dis-

cretion of the officer. The magistrate ought to judge:

and should give certain directions to the officer.”

Leach v. Three of the King’s Messengers, 19 How St

Tr 1001, 1027 (1765).

Lord Mansfield’s formulation touches the very

heart of the Fourth Amendment directive. . . . Inher-

ent in the concept of a warrant is its issuance by a

“neutral and detached magistrate.” Coolidge v. New

Hampshire, supra, at 453 [91 S.Ct. at 2031], 29 L.Ed.

2d at 575. The further requirement of “probable

cause” instructs the magistrate that baseless searches

shall not proceed.

The Fourth Amendment contemplates a prior judicial

judgment, not the risk that executive discretion may

be reasonably exercised. This judicial role accords

- Die ews ania ated

A-35

with our basic constitutional doctrine that individual

freedoms will best be preserved through a separation

of powers and division of functions among the dif-

ferent branches and levels of Government. John M.

Harlan, Thoughts at a Dedication: Keeping the Judi-

cial Function in Balance, 49 ABAJ 943-944. (1963).

The independent check upon executive discretion is

not satisfied, as the Government argues, by ‘‘extremely

limited” post-surveillance judicial review.

407 U.S. at 316-18, 92 S.Ct. at 2136-37 (footnotes and cita-

tions omitted). See also Chimel v. California, 395 U.S. 752,

761, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969) (quoting

McDonald).

[8] These passages are clear and unequivocal: the

Fourth Amendment requires that no warrant issue but up-

on probable cause, as determined by a neutral and de-

tached magistrate. It is undisputed that the Dallas County

procedures challenged here did not meet this requirement.

The trial court therefore held them unconstitutional; we

affirm its holding."

Although the County grounded its argument primarily

on Gerstein, it relied also on one paragraph of Smart v. Jones,

530 F.2d 64 (5th Cir.), cert. denied, 429 U.S. 887, 97 S.Ct. 240,

50 L.Ed.2d 168 (1976). In that paragraph, we stated.

There is no merit to the issues which imply that Deputy

Grandstaff initiated this entire altercation by attempting

to serve invalid civil process on the plaintiff. The Capias,

Texas’ equivalent to an arrest warrant which is “issued

by the court or clerk and directed ‘To any peace officer

of the State of Texas’” Art. 23.01, Tex.C.Crim.P., was

neither improperly executed, nor violative of due process.

530 F.2d at 66. This language falls far short of affirming the

constitutionality of the practises at issue here; the County’s re-

liance on Smart is misplaced.

A-36

Inability for Money Damages

The jury awarded Crane money damages and assessed

them against the County and the District Attorney. The

trial court held the County immune from liability for dam-

ages because ‘‘the accused practices were implemented by

state officers, not county officers. The acts were neither

done for the county nor subject to its control. The ac-

cused practices can then hardly be said to be a county cus-

tom or practice.” Crane v. Texas, 534 F.Supp. 1237, 1246

(N.D.Tex. 1982). The trial court held the District Attor-

ney immune from liability for money damages because

there was no evidence that he breached a duty to the

County. Jd. Crane contends that the trial court erred in

ISThis holding, although unaccompanied by supporting ci-

tation, appears premised on a line of cases beginning with

Roberts v. Williams, 456 F.2d 819 (5th Cir.), cert. denied sub

nom. Roberts v. Smith, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d

110 (1971), extending through Sims v. Adams, 537 F.2d 829 (5th

Cir.1976), and Howard v. Fortenberry, 723 F.2d 1206 (5th Cir.),

vacated in part, 728 F.2d 712 (1984), to, most recently, Craine

v. Alexander, 756 F.2d 1070 (5th Cir. 1985), in which this Court

has stated that breach of a duty imposed by state law must be

shown by a plaintiff seeking to impose liability under § 1983.

This showing is not required, however, of a plaintiff alleging

that defendants were directly responsible for the offending

conduct. The distinction is clearly set forth in Sims:

The language of § 1983 requires a degree of causation as

an element of individual liability, but it does not specifical-

ly require “personal participation.” The proper question

is therefore whether the complaint adequately alleges the

requisite causal connection between the supervisory de-

fendants’ actions and a deprivation of plaintiff's consti-

tutional rights. “Personal participation” is only one of

several theories which can be used to establish causation.

(Continued on following page)

A-37

holding all defendants immune from liability for money

damages. We agree, although for reasons different from

those offered by Crane.

[9,10] The trial court’s rationale for County immu-

nity appears premised on a finding that the District Attor-

ney was an officer of the state. This finding presents prob-

lems. State officials partake of the Eleventh Amendment

immunity of the states they serve. Edelman, 415 U.S. at

663, 94 S.Ct. at 1355; Familias Unidas, 619 F.2d at 404-05.

“(T jhe Supreme Court has flatly stated that neither the

statutory language nor legislative history of section 1983

evinces a sufficient, express congressional intention to

override the traditional immunities of the states to allow

private damage actions against the states and their offi-

cals pursuant to that statute.” Familias Unidas, 619 F.

2d at 405 (emphasis added), citing Quern v. Jordan, 440

U.S. 332, 339, 99 S.Ct. 1139, 1144, 59 L.Ed.2d 358 (1979).

The Eleventh Amendment thus bars a private suit for dam-

ages brought under § 1983 against a state official; the

exception to Eleventh Amendment immunity provided by

(Continued from previous page)

Another theory which includes the requisite causation

is that a supervisory defendant is subject to § 1983 liabil-

ity when he breaches a duty imposed by state or local law,

and this breach causes plaintiff’s constitutional injury.

537 F.2d at 831 (emphasis added) (citations and footnote

omitted); see Howard, 723 F.2d at 1209 (showing of breach of

state-law duty would be required where no defendant was di-

rectly responsible for violation).

These cases thus provide alternative theories for imposi-

tion of § 1983 liability; either direct responsibility or breach of

a state-law duty. Given the district attorney’s direct respon-

sibility for the Dallas County system, it was unnecessary for

Crane to prove that he breached a duty imposed by State law.

A-38

Ex parte Young does not extend to such actions. Penn-

hurst, 465 U.S. at —, 104 S.Ct. at 908-909, 79 L.Ed.2d at

79-80. Further, the Supreme Court held in Pennhurst

that the Ex parte Young exception does not extend to vio-

lations of state law; thus, “a claim that state officials vio-

lated state law in carrying out their official responsibili-

ties is a claim against the state that is protected by the

Eleventh Amendment,” and ‘‘this principle applies as well

to state law claims brought into federal court under pend-

ent jurisdiction.” 465 U.S. at —, 104 S.Ct. at 919, 79

L.Ed.2d at 92."

The import of these principles is clear. As a state

official, the District Attorney was immune from more than

liability for damages; the jurisdictional bar of the Eleventh

Amendment rendered him immune from an action for

damages. The trial court was thus required to dismiss

Crane’s aciion for damages against the District Attorney

if it found him to be a state official.’ By permitting the

16A finding that the County District Attorney, the County

Judges, and the County Clerk were state officials would there-

fore, under Pennhurst, deprive the trial court of jurisdiction to

render its declaratory judgment that their practices violated

state law. Because we conclude that defendants here were of-

ficers of the County, not of the State, we need not disturb the

trial court’s judgment, to which Pennhurst does not apply.

17This analysis, which applies as well to the County Judges

and the County Clerk, pertains only to suits against the officials

in their official capacities. Tle Eleventh Amendment is obvious-

ly no bar to actions for damages against officials sued in their

individual capacities; see Wells v. Hutchinson, 499 F.Supp. 174,

204 n. 40 (E.D.Tex.1980); in such actions, defendants must

plead and prove the affirmative defense of qualified or “good

faith” immunity. See Familias Unidas, 619 F.2d at 403 and n. 12;

see also Harlow v. Fitzgerald, 457 U.S. 800, 815-18 and n. 30,

102 S.Ct. 2727, 2738-39 and n. 30, 73 L.Ed.2d 396 (1982).

(continued on following page)

A-39

action to proceed, however, the trial court implicitly found

the District Attorney to be something other than a state

officer, to wit, an official of a local unit of government it-

self unprotected by the Eleventh Amendment. This con-

clusion is buttressed by-the trial court’s reason for holding

the District Attorney immune from liability for damages.

If the District Attorney were a state officer, the Eleventh

Amendment alone would render him immune from such

liability; in this cireumstance, whether he breached a duty

owed to the County would be perfectly irrelevant.

[11] It is apparent from the foregoing that the trial

court’s reasoning in this regard cannot be made internally

consistent. We therefore turn to the second premise on

which the trial court grounded the County’s immunity

from damages: that the accused practices “were neither

(lone for the county nor subject to its control.” 534 F.

Supp. at 1246. In Monell, the Supreme Court held that

local governments ‘‘can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where ... the

action that is alleged to be unconstitutional implements or

executes a policy statement, ordinance, regulation, or deci-

sion officially adopted and promulgated by that body’s offi-

cers.” 436 U.S. at 690, 98 S.Ct. at 2573. This Court, en

bane, has construed Monell to permit the imposition of

(Continued from previous page)

Although the matter is not free from doubt, we assume

here that defendants were sued in their official capacities. This

assumption is grounded both on defendants’ assertion of Elev-

enth Amendment immunity and on the trial court’s award of

attorneys’ fees against the state, pursuant to the Civil Rights

Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988. Under

that Act, fee awards are ‘payable by the states when their of-

ficials are sued in their official capacities.” Hutto v. Finney, 437

U.S. 678, 694, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522 (1978).

A-40

municipal liability when the alleged deprivation of feder-

ally guaranteed rights is inflicted pursuant to official pol-

icy, official policy being defined as

1. A policy statement, ordinance, regulation, or deci-

sion that is officially adopted and promulgated by the

municipality’s lawmaking officers or by an official to

whom the lawmakers have delegated policy-making

authority ; or

2. A persistent, widespread practice of city officials

or employees, which, although not authorized by offi-

cially adopted and promulgated policy, is so common

and well settled as to constitute a custom that fairly

represents municipal policy. Actual or constructive

knowledge of such custom must be sttributable to the

governing body of the municipality or to an official

to whom that body had delegated policy-making au-

thority. Actions of officers or employees of a munici-

pality do not render the municipality liable under

§ 1983 unless they execute official policy as above de-

fined.

Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.

1984) (en bane), quoting Bennett v. City of Slidell, 735

F.2d 861, 862 (Sth Cir.1984) (en banc). Although the trial

court did not have the benefit of this formulation, it did

consider whether the challenged practices constituted

County policy under Monell, and concluded that they did

not because the practices were not subject to County con-

trol. 534 F.Supp. at 1237. The trial court’s conclusion is

flatly contradicted by the course of events of this litiga-

tion and cannot be reconciled therewith.

In its Memorandum Order of November 30, 1981, the

trial court asked the defendants for ‘‘concrete proposals”

for a new Dallas County system of issuing capias. /d. at

13. The judges and the District Attorney submitted such

A-41

proposals; they were filed with the court on December 9

and 11, 1981, respectively. The District Attorney had be-

gun to make changes in the system even before this, how-

ever. A letter from the District Attorney to the Chief of

Police of the City of Dallas, dated July 20, 1981, announces

“I plan certain changes in the procedure for the filing of

criminal cases with the Dallas County District Attorney’s

Office.” A memorandum from the District Attorney to

“All Police Departments and Agencies Filing Cases with

the Dallas County District Attorney’s Office,” dated Sep-

tember 17, 1981, states ‘‘Certain changes in the procedure

for the filing of criminal cases with the Dallas County Dis-

trict Attorney’s Office are presently (sic) being imple-

mented.” A letter from the District Attorney to Judge

Ellis of the Dallas County Criminal Court dated December

7, 1981, begins, ‘‘As a result of the recent decision by

Judge Higginbotham in Cause No. CA 3-80-0978-6, styled

Stephen C. Crane versus State of Texas, et al, the follow-

ing is the form of action this office would like to take—

with your cooperation.” In none of these communications

is there the slightest indication that the District Attorney

acted other than independently; there is no hint of any

perceived necessity by the District Attorney to consult

with or invite the participation of any state official, for

example, a member of the State Attorney General’s Office.

To the contrary, the record plainly shows that the District

Attorney was alone responsible for the County system and

could change it at will. This fact is implicit in the trial

court’s order of February 4, 1982, denying injunctive relief

because

[B]eginning as early as June 1981, some five months

before this court’s Memorandum Order of November

30, 1981, defendants voluntarily changed the method

A-42

used to issue capias in misdemeanor cases. Imple-

mentation of this change has proceeded at a steady

pace. At all times, defendants have demonstrated by

concrete action their good faith effort to achieve a

sound and legally sufficient system.

Id.*& In Familias Unidas, this Court described the cir-

cumstances in which the acts of a county judge would con-

stitute official county policy under Monell:

[A]t least in those areas in which he, alone, is the final

authority or ultimate repository of county power, his

official conduct and decisions must necessarily be con-

sidered those of one “whose edicts or acts may fairly

be said to represent official policy” for which the

county may be held responsible under section 1983.

619 F.2d at 404. This language, which “relates to the offi-

cer who obtains policymaking authority by virtue of the

office to which that officer is elected,” was explicitly af-

firmed in Bennett, 735 F.2d at 862. It clearly covers the

acts of the District Attorney here. His authority to es-

tablish County procedures for issuing misdemeanor capias

derived from the County office to which he was elected by

County voters. That he had such authority is patent and

admitted by the District Attorney himself; his first amend-

ed answer, filed with the court on September 12, 1980,

18See also Memorandum Order of September 8, 1982, in

which the trial court stated,

Moreover, though Dallas County changed its system for

reasons including ‘administrative prudence,’ it is clear that

Crane’s suit challenging the system was a Catalyst in ef-

fectuating that change.

Id. at 1-2 (citation omitted) (emphasis added). The conflict be-

tween this statement and the trial court’s conclusion that the

ay had no control over its system is obvious and irrecon-

cilable.

A-43

states that he ‘thas established policies and procedures of

an administrative nature only as to the filing and process-

ing of criminal information in Dallas County.” Jd. at 4.

hus, because the ultimate authority for determining

County capias procedures reposed in the District Attor-

ney, an elected County official, his decisions in that regard

must be considered official policy attributable to the

County. As we stated in Bowen v. Watkins, 669 F.2d 979

(5th Cir.1982),

At some level of authority, there must be an official

whose acts reflect governmental policy, for the gov-

ernment necessarily acts through its agents. Thus

the question becomes one of identifying the official

who has authority to make policy; then municipal lia-

bility attaches to acts performed pursuant to that pol-

icy. When an official has final authority in a matter

involving the selection uf goals or of means of achiev.

ing goals, his choices represent governmental poliey.

669 F.2d at 989. The County in this case acted thr. ugh the

District Attorney; he selected the means by which the

County was to achieve a sound and legally sufficient capias

system. His choice of an unsound and legaliy insufficient

system represents County policy for which the County is

liable. The trial court’s finding to the contrary was error,

and we reverse it.'®

The trial court grounded its finding in part on our state-

ment in Familias Unidas that the duty of a County judge “in

implementing section 4.28, much like that of a county sheriff

in enforcing a state law, may more fairly be characterized as

the effectuation of the policy of the State of Texas embodied

in that statute, for which the citizens of a particular county

should not bear singular responsibility.” 619 F.2d at 404. Thus,

because defendants here were “enforcing the state criminal

law,” 534 F.Supp. at 1245, the trial court found the County im-

mune.

(Continued on following page)

A-44

[12] Although the jury found that the District At-

torney knew, or should have known, that the Dallas County

capias system infringed Crane’s clearly established con-

stitutional rights, the trial court held him immune from

liability for damages. It found that the District Attorney

had no duty to advise the County on its capias system;

there being no duty, there could be no breach and there-

fore no liability. This finding was grounded on ‘ex.liev.

Civ.Stat.Ann. art. 334 (Vernon 1982), which provides,

‘‘The district and county attorneys, upon request, shall

(Continued from previous page)

This reading of Familias Unidas ignores two crucial dis-

tinctions between that case and this. First, the defendants in

Familias Unidas complied with a state statutory scheme later

found to be unconstitutional; the error was in the scheme, not

in defendants’ interpretation of it. Here, defendants failed to

comply with a constitutional state statutory scheme; the error

was in their interpretation, not in the scheme.

Second, the statute at issue in Familias Unidas was narrow-

ly drawn, leaving little, if any, room for the exercise of discre-

tion in its implementation. By contrast, the statutes in question

here were so drawn as to require the exercise of discretion.

The point is clearly made in Familias Unidas: ‘‘The narrow au-

thority delegated to the county judge in section 4.28, however,

bears no relation to his traditional role in the administration

of county government or to the discretionary powers delegated

to him by state statute in aid of that role.” 619 F.2d at 404 (em-

phasis added). Familias Unidas cannot thus properly be con-

strued to immunize local governments from § 1983 damage

liability for actions within the discretion of their officials which

prove to be both unconstitutional and illegal under state law.

See Williams v. Thomas, 692 F.2d 1032, 1039-40 (5th Cir.1982),

cert. denied, — U.S. —, 103 S.Ct. 3115, 77 L.Ed.2d 1369 (1983);

Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir.1981), cert. de-

nied, 456 U.S. 925, 102 S.Ct. 1969, 72 L.Ed.2d 440 (1982). It

stands rather for the unexceptionable proposition that local

governments and their officials who act in conformance with

a state statutory scheme will not be held liable for § 1983 dam-

ages if the scheme is later held unconstitutional. Familias Uni-

= therefore provides no support for the trial court’s finding in

this case.

A-45

give an opinion or advice in writing to any county or

precinct officer of their district or county, touching their

official duties.’’ There was no evidence that any County

official had requested the District Attorney’s advice on

the County’s capias system. The statute plainly did not

require the District Attorney to give the County unso-

licited legal advice. Therefore, the trial court reasoned,

the District Attorney could not be liable for not doing

something he had no duty to do.

The obvious flaw in this reasoning is that the statute

quoted above has no application to actions taken by the

District Attorney in the exercise of his discretionary au-

thority. Where, as here, the District Attorney himself

established the procedures to be followed by the County

in issuing misdemeanor capias, the statute does not and

could not apply unless it were construed to require a

County official to ask the District Attorney to provide

legal advice to himself about his own system. The sug-

gestion is not plausible. It is true, as the trial court noted,

that the District Attorney has no duty, Statutory or other-

wise, to monitor independently the manner in which other

officials performed their public duties. This fact does

not, however, relieve him of the duty to monitor his own

actions, nor does it relieve him of responsibility when

those actions result in the deprivation of federal!y guar.

anteed rights. The District Attorney established the pro-

cedures used in Dallas County to issue misdemeanor capias.

His duty to do so in accordance with the United States

Constitution and the laws of Texas was one entirely in-

dependent of any duty to render legal advice to others.

Thus, the trial court erred in finding the District Attor-

ney immune from liability by reason of Tex.Rev.Civ.Stat.

A-46

Ann. art. 334. Neither that statute nor any other pro-

vides him with immunity from liability for actions that in-

fringe the constitutional rights of others. We therefore

hold the District Attorney liable for the damages awarded

by the jury and assessed against him.

We do not, however, hold him liable in his individual

capacity. The conduct complained of was that of a County

officer engaged in the furtherance of his duties; we have

found that conduct to constitute official policy attributable

to the County. This finding, as well as those factors dis-

cussed supra n. 15, compel the conclusion that Crane

brought suit against the District Attorney in his official

capacity. See Williams, 692 F.2d at 1040. Because the

defense of qualified, good faith immunity is not available

to a defendant sued in his official capacity, Owen v. City

of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d

673 (1980); Barrett, 649 F.2d at 1203 (Brown, J., concur-

ring); Familias Unidas, 619 F.2d at 403 n. 12, it is thus

unnecessary for us to determine whether, as Crane con-

tends, the District Attorney was unprotected by such im-

munity.”

For the foregoing reasons, we .old that the trial court

erred in finding the District Attorney and the County

immune from liability for money damages. The jury’s

20In any event, it is by no means ciear that this point is

properly before this Court. The trial court did not ground its

finding that the District Attorney was not liable for damages on

that officer's qualified, good faith immunity; such immunity is

not even mentioned in the trial court’s opinion. There would

thus appear to be no finding of qualified immunity for Crane

to assign as error. The question would be of some importance

had we found the instant action to be one against the District

Attorney in his individual capacity; it is irrelevant in view of

our conclusion that the District Attorney was sued in his of-

ficial capacity.

ee Mn mM

A-47

award of money damages to Crane is accordingly rein-

stated. Because the injury for which damages were

awarded resulted from the official policy of the County

as embodied in the official actions of the District Attor-

ney, the County will be liable for those damages assessed

against the District Attorney as well as those assessed

against itself.

Liability for Attorneys’ Fees

The trial court awarded Crane attorneys’ fees pur-

suant to the Civil Rights Attorneys’ Fees Awards Act

of 1976, 42 U.S.C. § 1988. It assessed the fees against the

State of Texas because ‘‘[t]he actors whose conduct was

at issue in the maintenance of the warrant system and its

specific application to Crane were wearing their state

hats.’”” Memorandum Order of September 8, 1982, at 3.

The State of Texas contends that this was error, arguing

that the fee award should have been assessed against Dal-

las County. We agree.

[13] The general rule regarding §1988 attorneys’

fees is set forth in Familias Unidas:

An award of attorneys’ fees under section 1988 against

an individual in his official capacity ordinarily is

treated as an award against the particular govern-

mental body of which he is a representative, and is

to be paid from the funds of that body, whether or

not it is a named party to the suit.

619 F.2d at 406, citing Hutto v. Finney, 437 U.S. 678, 693-

700, 98 S.Ct. 2565, 2574-2579, 57 L.Ed.2d 522 (1978). Thus,

attorneys’ fees are properly assessed against the state

when its officials are sued in their official capacities,

Hutto, 437 U.S. at 693-94, 98 S.Ct. at 2574-75, and when

their conduct may fairly be said to represent its official

A-48

policy. See Barrett, 649 F.2d at, 1201; Familias Unidas,

619 F.2d at 406. Neither condition is met here.

[14] Crane did not sue the individual defendants for

actions taken on behalf of the State; rather, he sued them

because of the roles they played in establishing and im-

plementing the Dallas County system of issuing misde-

meanor capias. Defendants created that system and con-

trolied it for the County, not for the State; therefore, in

so doing they acted as County, not State, officials. The

system they created and controlled violated Texas law;

thus, it can scarcely be said to represent the official policy

of the State of Texas.*! We have held instead that it rep-

resented the official policy of Dallas County. The award

of Crane’s attorneys’ fees must therefore run against the

County; see Williams, 692 F.2d at 1040; Barrett, 649 F.2d

at 1201-02. Accordingly, we reverse” the trial court’s

assessment of those fees against the State, and render

judgment holding Dallas County liable for them.

Conclusion

In sum, we hold that neither Dallas County nor its

officials are protected by the immunity provided by the

21Familias Unidas is not to the contrary. In Familias Unidas

we stated that the statute in question, to which defendants had

conformed their conduct, ‘obviously represents tine official

policy of the State.” 619 F.2d at 404. The same may be said

of the statutes involved in this case. The conduct at issue here,

however, violated rather than conformed to those statutes;

it would be anomalous indeed to regard as official State policy

actions taken by County officials in violation of State law.

22Our reversal of the trial court’s award of § 1988 attor-

neys’ fees against the State is necessarily predicated on a find-

ing that the award constituted an abuse of the trial court’s dis-

cretion. Dean v. Gladney, 621 F.2d 1331, 1337 (5th Cir.1980);

Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir. 1978). |

A-49

Eleventh Amendment and that both the County and its

officials are ‘‘persons’’ within the meaning of 42 U.S.C.

§ 1983. We affirm the trial court’s findings that the Dal-

las County system of issuing misdemeanor capias violated

both Texas law and the United States Constitution. We

reverse the findings of immunity from liability for money

damages as to the County and the District Attorney, and

hold the former liable for its official policy and the latter

liable in his official capacity. We therefore reinstate the

jury’s award of money damages. We reverse the assess-

ment of attorneys’ fees against the State of Texas, and ren-

der judgment against the County for the fees. It is so

ORDERED.

B-1

APPENDIX B

Stephen C. CRANE, on behalf of himself

and others similarly situated,

Plaintiff-Appellee Cross Appellant,

Vv.

STATE OF TEXAS,

Defendant-Appellant,

Vv.

COUNTY OF DALLAS, Ben Ellis, John Orvis,

Mike Schwille, Berlaind Brashear and Chuck

Miller, Defendants-Appellants Cross Appellees,

Vv.

Henry WADE and L. E. Murdoch,

Defendants-Appellees.

No. 83-1650.

United States Court of Appeals,

Fifth Circuit.

July 22, 1985.

Plaintiff brought action challenging county’s practice

of issuing misdemeanor capias without finding of probable

cause. The United States District Court for the North-

ern District of Texas, Patrick E. Higginbotham, J., find-

ing that both cou./y and district attorney were immune,

awarded plaintiff only attorney fees, but the Court of Ap-

peals, 759 F.2d 412, reversed in part, finding neither county

nor district attorney immune. On motion for rehearing,

the Court of Appeals held that: (1) district attorney was

B-2

primarily county official, and county could be held liable

for district attorney’s unlawful practice of issuing capias

without probable cause, and (2) matter of attorney fees

on appeal was more appropriately addressed by district

court. in first instance.

Prior opinion vacated in part; petition denied in part.

1. Civil Rights — 137

Texas district attorney was primarily county official,

despite ultimately deriving powers of his office from state,

and county could be held liable for district attorney’s

practice of issuing misdemeanor capias without finding

of probable cause, in violation of Fourth Amendment,

U.S.C.A. Const.Amend. 4, 11; Vernon’s Ann.Texas Civ.

St. arts. 323, 328, 332b-2(b), 332d, 333; Vernon’s Ann.

Texas Const. Art. 5, $$ 19-21.

2. Civil Rights — 13.17(23)

In civil rights action against various governmental

parties, matter of plaintiff’s entitlement to attorneys fees

and costs on appeal, as well as his claim for restoration

of portion of trial attorneys’ fees because of developments

on appeal, were more appropriately addressed by district

court in first instance.

Earl Luna, Dallas, Tex., for Ellis et al. and Dallas

County.

Jim Mattox, Atty. Gen., Mary F. Keller, Lawrence J.

King, Asst. Attys. Gen., Austin, Tex., for State of Tex.

Peter Lesser, Johnston & Larson, Douglas R. Larson,

Dallas, Tex., for Crane.

B-3

Sue L. Lagarde, Dallas, Tex., for appellees Henry

Wade and Larry Murdoch.

Appeals from the United States District Court for the

Northern District of Texas.

' ON PETITIONS FOR REHEARING

AND SUGGESTIONS FOR

REHEARING EN BANC

(Opinion May 2, 1985, 5, Cir., 1985, 759 F.2d 412)

Before GEE, WILLIAMS, and JOLLY, Circuit Judges.

PER CURIAM:

[1] On motion for rehearing, appellant Dallas County

advances one contention requiring comment: that a Texas

district attorney is an officer of the State of Texas, not of

the county in which he serves, and hence that Dallas

County is not responsible for the policies which its Dis-

trict Attorney set for it. The point is a nice one and fairly

debatable. A complementary contention by the appellant

district attorney maintains that as such a State official

he partakes of its Eleventh Amendment immunity.

It. is indubitable that a Texas district attorney has

numerous, if relatively minor, attributes of a State offi-

cial. As appellants point out, the geographic extent of

his office’s authority is created by a specific state statute

for each territory (‘‘district’’) within the state, some few

of which comprise more than one county. E.g., Tex.Rev.

Civ.Stat.Ann. art. 332b-2(b) (64th Judicial District: Hale

and Swisher Counties). In the event of a vacancy in his

office, the Governor appoints his interim successor. Tex.

Rev.Civ.Stat.Ann. art. 328 (1973). His bond for faithful

performance of his duties runs to the Governor of the

Pee OS ae

B-4

State. Tex.Rev.Civ.Stat.Ann. art. 323 (1973). A state

administrative body, the Prosecutor’s Council, exists to

discipline and assist the holders of his office. Tex.Rev.

Civ.Stat. Ann. art. 322d (1985). The District Attorney

is required by statute to make reports to the State Attor-

ney General upon his request. Tex.Rev.Civ. Stat.Ann. art.

333 (1973). His office is created by Article V, 421, of

the State Constitution; and a text on state law describes

him, partly on the basis of this, as ‘‘an officer of the

state.’’ 31 Tex.Jur.3rd 394.!

Other and more significant factors, generally speak-

ing, argue that he is a local official. He is elected by

the voters of his district, usually one county. Tex.Const.

art. V, §21. His major powers and duties—which con-

cern the prosecution of serious crimes and which he exer-

cises alone and without responsibility to the State Attor-

ney General, who has no general prosecutorial powers—

are limited to the territory of his district. He is paid by

county funds, although these are partly reimbursed by the

state. And the significance of the creation of his office

by the State Constitution is diminished by the circum-

stance that other local offices are created by it as well.

See e.g., Article V, $19 (Justices of the peace) and § 20

(County clerks). In sum, much like the county itself, his

office is a local entity, created by the State of Texas and

deriving its powers from those of the State, but limited

in the exercise of those powers to the county, filled by its

1Another cited basis is dubious, a reference to the duties

of prosecutors in Lackey v. State, 148 Tex.Cr.R. 623, 190 S.W.2d

364, 365 (1945) (“[P]rosecuting attorneys are officers of the

state, whose duty is to see that justice is done, ...’’). It seems

that this reference is to the “state” in the abstract, rather than

as a particular political entity.

B-5

voters, and paid for with its funds. As for the case in

hand, District Attorney Wade was responsible for the

county policy attacked and conclusively demonstrated his

ability to alter it on his own by doing that very thing.

For present purposes, then, we conclude that he is

properly viewed as a county official, elected by its voters

and responsible for its relevant policy. In such cireum-

stances, we see no injustice in holding the County respon-

sible for his actions of this sort. Doubtless he is also in

some senses an officer of the State (or of the state), at

least as ultimately deriving the powers of his office from

that source. But even were he a State official in every

sense, called so in State law and designated by the State

to make policy for its other creature, the county, our an-

swer would likely remain the same; county responsibility

for violation of the Constitution cannot be evaded by such

ingenious arrangements. At all events, his immunity or

want’ of it is of little practical consequence. The joint

and several judgment against him in his official capacity

only and against the county will expend itself on the

county treasury. See, Kentucky, dba Bureau of State

Police, Petitioner v. James E. Graham, et al., —U.S.—.

105 S.Ct. 3099, 85 L.Ed.2d — (1985).

[2] Plaintiff has filed with us a motion for attor-

neys’ fees and costs on appeal, as well as one for restora-

tion of a portion of trial attorneys’ fees because of de-

velopments on appeal. We conclude that such matters are

better addressed as one by the district court, and we there-

fore amend our original disposition to VACATE the

award of attorneys’ fees heretofore made and REMAND

to permit the district to do so.

B-6

In all other respects, the Petitions for Rehearing are

DENIED; and no member of this panel nor Judge in reg-

ular active service on the Court having requested that the

Court be polled on rehearing en bane (Federal Rules of

Appellate Procedure and Local Rule 35), the Suggestions

for Rehearing En Bane are DENIED.

C-1

APPENDIX C

Stephen C. CRANE, et al., Plaintiffs,

The STATE OF TEXAS, et al., Defendants.

CIVIL ACTION NO, CA-3-80-0978-G

United States District Court,

N. D. Texas,

Dallas Division.

March 11, 1982.

Civil rights action was filed. Following jury trial, the

District Court, Patrick E. Higginbotham, J., held that: (1)

county could not be held liable for any civil rights viola-

tions engaged in by criminal district attorney, the county

clerk, or the county criminal judges, in that those off*cers

function as state, not county, officers; and (2) criminal

district attorney could not be held liable for not advising

county to change its system for issuing misdemeanor

capias.

Ordered accordingly.

1. Counties—21%,

Unless a particular county action is explicitly author-

ized by the Constitution or a statute, the county will not be

allowed to exercise it.

2. Civil Rights—13.7

County could not be held liable for any civil rights

violations engaged in by criminal district attorney, the

county clerk, or county criminal judges, where prosecu-

torial activities were undertaken to meet a state-created

C-2

duty and were not subject to control by the county. 42

U.S.C.A. § 1983,

13.7

3. Civil Rights

County criminal district attorn y could not be held

liable in civil rights action for not advising county to

change its system for issuing misdemeanor capias, in that

primary task of criminal district attorney is to represent

the state in criminal and civil matters, there was no evi-

dence that any county official submitted a request, written

or otherwise, asking district attorney’s advice concerning

the county system for issuing misdemeanor capias, and

criminal district attorney has a limited responsibility to

the county. Vernon’s Ann.Tex.Const.Art. 5, § 21; Ver-

non’s Ann.Tex.Civ.St. arts. 326k-1, 332e, 332d, 334; 42

U.S.C.A, § 1983.

Douglas R. Larson, Johnston & Larson, Peter Lesser,

Dallas, Tex., for American Civil Liberties Union.

Gerald C. Carruth, Asst. Atty. Gen., Austin, Tex., for

intervenor.

Chas. L. Baldree, Sue L. LaGarde, J. Steven Bush,

Asst. Dist. Attys., Federal Litigation Section, Dallas, Tex.,

for Henry Wade, Murdoch and State of Tex.

Karl Luna, Law Offices of Earl Luna, Dallas, Tex., for

Dallas County, Ben Ellis, John Orvis, Mike Schwille, Har-

old Entz, Tom Price, Berlaind Brashear and Chuck Miller.

Joseph G. Werner, Asst. City Atty., Dallas, Tex., for

Perez Woods, City of Dallas: (Dismissed After Trial).

C-3

MEMORANDUM OPINION

PATRICK E. HIGGINBOTHAM, District Judge.

I. Factual Background

On April 21, 1980, Stephen C. Crane was arrested at

his office and jailed pursuant to a misdemeanor capias

alleging that he knowingly exhibited obscene film at the

Crystal Adult Theater in Dallas. It later developed that

Crane was arrested only because a lawyer with whom

Crane shares office space listed him, without his knowl-

edge or consent, as one of three “initial directors” in the

1979 Articles of Incorporation of a Texas corporation

known as the Crystal Theater. The charges against Crane

were dismissed for insufficient evidence on the state’s mo-

tion. Crane filed suit charging that his arrest was illegal

and was the by-product of an illegal system of misde-

meanor arrests. The court bifurcated trial into a consid-

eration of whether the challenged practices were legal and

whether Crane was entitled to damages.

The system which was used in Dallas County for issu-

ing misdemeanor capias at the time Stephen Crane was

arrested was described in detail in an earlier order deal-

ing with the legality of the system. Memorandum Order,

No. CA 3-80-0978-G (Nov. 30, 1981). Briefly, under this

system the county clerk’s office would issue misdemeanor

eapias without a probable cause determination. P.ior to

issuing misdemeanor capias, assistant county clerks would

perform the clerical task of typing information from a

form, labeled an affidavit, which was presented by an as-

sistant district attorney from the Criminal District Attor-

ney’s office.

A jury trial was conducted to determine whether

Crane was entitled to money damages. The jury deter-

mined that Crane was entitled to $15,000 for injuries

caused by his arrest and to $25,000 for injuries caused by

his being charged with promoting obscenity. Crane sought

damages from a number of defendants including the Coun-

ty Clerk and the three city police officers who arrested

him, but the jury only awarded damages against Dallas

County and Henry Wade, the Criminal District Attorney

of Dallas County. The liability of Henry Wade is dis-

cussed in Part IV of this memorandum order.

This court must decide whether the county is liable

because the practices found to be illegal were a ‘*eounty

policy or custom.” In Monell v. Department of Social

Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978),

the Supreme Court concluded that a local government unit

could be sued as a ‘“‘person” under 42 U.S.C. § 1983 if that

governmental entity or an official representing that entity

maintains or practices an unlawful or unconstitutional cus-

tom or policy which causes the deprivation of individual

rights. Resolution of the issue requires a consideration of

(1) the relationship between the county and the state and

(2) the nature of the office of those responsible for the

prosecutorial functions.

Il. The Nature of Texas Counties and

Their Relationship to the State

A. The Creation and Structure of Counties

The lack of local control over counties is evidenced in

the state’s power to create and dissolve them and that

power’s constitutional provenance. Since the 1845 consti-

tution, the legislature has had the power to create and

C-5

dissolve counties within certain constitutional guidelines.

Tex.Const. art. 9,41. Counties, unlike other governmental

entities such as hospital districts, cannot be created by

local initiative." Tex.Const. art. 9, § 4.

The structure of Texas county government has changed

little over the 150 years since the Republic’s first constitu-

tion. ‘his lack of change is due largely to the fact that

the structure of county government is fixed in the con-

stitution and cannot be changed without a constitutional

amendment. The inflexibility of county governmental

structure is recognized in the interpretive commentary to

Tex.Const. art. 5, § 18:

The close restrictions placed in the constitution rela-

tive to counties made fundamental changes in the or-

ganization of most counties almost impossible. In

1930 there was initiated a movement for county home

rule to overcome this inflexible control. A constitu-

tional amendment providing for county home rule was

passed by the legislature in 1933 and approved by the

voters the same year. (See Art. 9, Sec. 3).

Because the home rule amendment was repealed in 1969,

counties remain with a constitutionally fixed governmental

structure.

The constitutional source of its structure also reduces

the control of the local citizenry over county government.

Au example of the lack of local control over the structure

of local county government is found in Moncrief v. Gurley,

609 S.W.2d 863 (Tex.Civ.App — Fort Worth 1980, writ

‘In Laje v. R. E. Thomason, 665 F.2d 724 (5th Cir. 1982),

the fifth circuit emphasized that a hospital district was created

by local initiative in deciding that the district was not entitled

to eleventh amendment immunity.

C-5

ref’d n. r. e.), which involved the question of whether the

voters of the county could abolish the office of County

Treasurer, The state legislature enacted a statute provid-

ing for an election in Tarrant County concerning consol-

idation of the offices of County Treasurer and County

Auditor. Based on its reading of several constitutional

provisions, the court concluded that the County Treasurer

was a “constitutional officer” and as such his office could

could not be abolished except by constitutional amendment.

Thus, even with legislative approval, the citizens of a

county are not free to choose its governmental structure

because constitutional amendments require statewide elec-

toral approval. By way of contrast, the structure of city

government is not constitutionally fixed and ean he changed

by amendment of the city’s charter. Such amendments re-

quire only local electoral approval and legislative approval.

This is so with the several] types of cities under Texas gov-

ernment. Cities with greater than 5,000 inhabitants can

adopt a “home rule” charter which provides them with

certain enumerated powers, Tex.Rev.Civ.Stat. Ann. arts.

1165-1182 (Vernor 1982), or they can adopt an individual-

ized charter. Either type of charter is essentially a con-

tract between the state and city outlining the city’s powers

in broad terms. There are also some smal] cities (usually

with a population of less than 9,000) which are known as

“general law cities” and whose powers are more restricted.

By statute providing for “home rule” by cities, they have

the power to create a “commission, aldermanic, or other

form of government; [and to create] offices, the manner

and mode of selecting officers and prescribing their qual-

ifications, duties, compensation and tenure of office.” Tex.

Rev.Civ.Stat.Ann. art 1175 (Vernon 1982).

C-7

I turn now to the responsibilities of county officials,

whether elected or appointed, how vacancies are filled, how

they are compensated, and how such officers can be re-

moved.

B. The Duality of Texas Counties and County Officers

Counties in Texas have dual functions. They serve

as administrative arms of the state, and they perform

functions of local interest as well. County officers reflect

this duality.

1. County Officials Responsible for the

Prosecutorial Function

a. The County Commissioners Court: The County

Commissioners and the County Judge

Tex.Const. art. 5, 4 15 provides for the office of County

Judge: “... [T]here shall be elected in each county, by

the qualified voters, a County Judge, who... shall hold

his office for four years ... [and] shall receive such com-

pensation for his services such fees and prerequisites as

may be prescribed by law.” The County Judge presides

over the principal governing body of the County Commis-

sioners Court.

. . . Each county shall . . . be divided into four com-

missioners precincts in each of which there shall be

elected by the qualified voters thereof one County

Commissioner, who shall hold his office for four years

and until his successor shall be elected and qualified.

The County Commissioners so chosen, with the Coun-

ty Judge as presiding officer, shall compose the Coun-

ty Commissioners Court, which shall exercise such

powers and jurisdiction over all county business as is

conferred by the Constitution and the laws of the

State, or may hereafter be prescribed.

C-8

Texas Const. art. 5,418. The County Judge also has the

responsibility of supervising local and state elections.

Many of the duties of the County Commissioners

Court, which is the chief administrative body in the coun-

ty, are prescribed in Tex.Rev.Civ.Stat.Ann. art. 2351.

These duties can be summarized as follows:

—

10.

11.

Lay off the county into precincts for the purpose

of election of justices of the peace and commis-

sioners;

Establish, repair and exercise general control over

contract to sell roads, highways, bridges, ferries,

and airports and to subterranean waters ;

Administer lands granted by state to county for

education or schools :

Audit and settle all accounts against the county

and direct their payment;

Provide for support and burial of paupers and

for the support of the emotionally disturbed and

mentally retarded;

Assist the federal government in the administra-

tion of food stamp and subsidized housing pro-

grams;

Provide and keep in repair courthouses, jails and

all necessary public buildings ;

Provide seals required by law for the county and

district courts;

Punish contempts with smali fines and jail terms

up to 24 hours;

Issue all notices, citations, writs and process nec-

essary to execute its powers; and

Such court shall have all such other powers and

jurisdiction and shall perform all such other du-

ties, as are now or hereafter prescribed by law.

Tex.Civ.Stat.Ann. art. 2351 (Vernon 1982).

C-9

As will be discussed below in relation to the dual na-

ture of county government, the powers which have been

granted the county’s administrative body have been nar-

rowly construed.

The other duties of the Commissioners Court include

approval of the county budget, setting the property tax

rate within constitutional and statutory limits, Tex.Const.

art. 8, §9 (Vernon 1982), and collecting those taxes for

both local and state purposes. The Commissioners Court

is also empowered to fill vacancies in other offices includ-

ing that of County Clerk, Tex.Const. art. 5, § 20, County

Attorney, District Attorney or Criminal District Attorney,

Tex.Const. art. 5, §21. If there is a vacancy ir the office

of County Judge, the commissioners fill this vacancy, Tex.

Const. art. 5, § 21, and if one of the commissioner’s posts

becomes vacant, the County Judge is empowered to fill it.

Tex.Civ.Stat.Ann. art. 2341 (Vernon 1982). In order to

ensure that the commissioners and the County Judge ful-

fill their duties, they are required to take an oath and pro-

vide a bond, which is payable to the County Treasurer.

Tex.Rev.Civ.Stat.Ann. arts. 2340, 1928 (Vernon 1982). The

County Judge is elected by all the voters of the county,

Tex.Const. art. 5, §15; Tex.Stat.Ann. art. 1927, and the

commissioners are elected by the voters of their respective

precincts, Tex.Const. art. 5, §18, Tex.Rev.Civ.Stat.Ann.

art. 2339 (Vernon 1982). The County Judge and the Com-

missioners can be suspended from office for “ineompeten-

ey,” Tex.Rev.Civ.Stat.Ann, art. 5972 (Vernon 1982) or

“official misconduct,” id. art. 5973, by a state district court

judge. Jd. art. 5982. They can be removed from office for

C-10

the same reasons after a formal complaint is filed and a

trial is conducted. Td. arts. 5970, 5976-82. The statutes

contemplate a trial to a jury over which a district court

judge presides. Id, These procedures also govern the

suspension and removal of other officers such as the Coun-

ty Clerk and statutory county judges. In contrast, offi-

cers in cities with home rule and in cities with charters

are removed after a trial before the city’s mayor and

aldermen. /d. arts. 5992-5993. Commissioners are paid a

salary vut of the county’s Road and Bridge and General

Funds, id. art. 2350, or out of the Officer’s Salary Fund.

Id. art. 3912e, §5. Revenues for the Officer’s Salary Fund

are generated by char ing fees for the various services

performed by officers s: *h as the County Clerk and County

Attorney (e.g., a fee is charged by the clerk for recording

deeds and the state pays fees to officers who assist it in

criminal prosecutions). The salary of the County Judge

is also paid out of this fund. Id. The legislature has the

power to appropriate money to these funds to supple-

ment the revenues generated by fee collections. Jd. art.

3912e, § 6.

b. The Criminal District Attorney

Three types of attorneys are assigned tasks in Texas

government. This case concerns the Criminal District At-

torney of Dallas County, but it should be remembered that

county attorneys perform essentially the same tasks as

Criminal District Attorneys. The primary task of a Crim-

inal District Attorney is to represent the state in criminal

and civil matters. He is almost wholly “a judicial officer

of the state and has very little to do with the administra-

tion of the county.” H. G. James and I. Stewart, County

C-11

Government in Teras 42 (2d ed. 1925). He does, however,

perform certain tasks for the county government. He as-

sists the county with tax collection, Tex. Tax.-Gen.Ann.

§ 6.30 (Vernon Pam.1981), represents county officials and

employees in suits involving acts they performed as part

of their public duties, id. art. 332c, and gives advice to

county officers under certain circumstances. 7d. art. 334.

(This provision is discussed in relation to the claimed in-

dividual liability of the District Attorney). It is not, how-

ever, one of the prescribed legal duties of the county or

criminal district attorney ‘‘to represent the county in its

general legal business or the conduct of ordinary civil ac-

tions.” Hill Farm, Inc. v. Hill County, 425 S.W.2d 414, 417

(Tex.Civ.App. — Waco, 1968), aff’d on other grounds, 436

S.W.2d 320 (Tex.1969).

The Criminal District Attorney must file a bond to

insure that he will properly perform these duties. His

bond, unlike that of the commissioners, County Judge, or

County Clerk, is payable to the governor rather than the

County Treasurer. Tex.Rev.Civ.Stat.Ann. art. 326k-1 (Ver-

non 1982).

Criminal District Attorneys are elected by the voters

of the county. Tex.Rev.Civ.Stat. art. 1926-27. If the of-

fice of Criminal District Attorney becomes vacant, the

County Commissioners Court is empowered to fill the va-

cancy until the next election. Tex.Const. art. 5, § 21. In

some instances, the Criminal District Attorney receives a

small salary directly from the state. The Criminal Dis-

trict Attorney of Dallas County receives $500 per annum

from the state, Tex.Rev.Civ.Stat.Ann. art. 1926-27, §4

(Vernon 1982), but the primary source of his salary is

from the fees paid into the County’s Officer’s Salary Fund.

C-12

Id. arts. 3912e, §5. As noted, the fees that go into this

fund are for work the Criminal District Attorney per-

forms in prosecuting criminal cases. Tex.Code Crim.Proe.

arts. 1020-35 (Vernon 1982).

Until recently, the suspension and removal of Crim-

inal District Attorneys was governed by the same pro-

cedures that controlled the suspension and removal of the

County Judge, Commissioners, Clerk and other officers.

Tex.Rev.Civ.Stat.Ann. arts. 5970-5989 (Vernon 1982). In

1979 the legislature created a centralized agen¢y of the

judicial department of state government with responsibil-

ity to supervise the operation of prosecuting (Criminal

District, County and District) attorney’s offices. Id. art.

332d. The Prosecutor’s Council has nine members. Four

are appointed by the governor and five are elected by the

state’s prosecuting attorneys. Zd. art. 332d, 4 3. The Coun-

cil serves to aid the administration of prosecuting attor-

neys’ offices. It is also empowered to ‘‘accept and investi-

gate complaints of prosecuting attorney incompetency

and misconduct.” Jd. art. 332d, § 8(4). In McInnis v. State,

603 S.W.2d 179 (Tex. 1980), the Texas Supreme Court

cov rasted |e general suspension and removal procedures

in Avetie’. . 5970-86 to those in Article 332d:

Art. 5970, et seq., including Art. 5986, apply to

‘*All district and county attorneys” and to all county

officers. These prescribed procedures are materially

different from those encompassed within Art. 332d

governing the removal of prosecuting attorneys, who

are defined as inclusive of county, criminal or district

attorneys. The Art. 5970, et seq., proceeding, for ex-

ample, may be initiated by a citizen of the State. An

Art. 332d proceeding is initiated in the district court

by the Council only after extensive investigation

which may include a hearing by a master appointed by

C-13

the Supreme Court. Section 10(e) requires the ap-

pointment of a special judge to hear the case, and the

appointment of an attorney to prosecute the case. No

such requirements attach to the Art. 5970, et seq.,

proceeding.

ce. The County Clerk

Article 5, § 20 of the Texas Constitution provides for

the office of county clerk. He is an elected official who

also serves as a clerk of court to the district courts in the

counties with a population of less than 8,000. Z/d. In lar-

ger counties, such as Dallas County, his duties include is-

suing marriage licenses, Tex.Rev.Civ.Stat.Ann. art. 1935

(Vernon 1982), recording deeds, mortgages and other in-

struments, id. art. 1941, and serving as a custodian of rec-

ords. 7d. art. 1942. In addition, the clerk is the exofficio

clerk of the County Commissioners Court with the duty of

keeping minutes of their proceedings. 7d. art. 1940. He

also assists the commissioners court by issuing all writs,

notices and process necessary to execute its decisions. Jd.

art. 2345. The clerk takes an oath and posts a bond pay-

able to the county.? 7d. art. 1937, § 3. This bond can be

substantial (it is fixed by the County Commissioners Court

at an amount between $5,000 and $500,000, id. art. 1937, § 1),

but the County commissioners Court is required to pay

the premiums on the bond out of the general fund of the

county. Jd. art. 1937, §5. A certified copy of the clerk’s

bond may be produced in the name of the county when it

is sued by a party who has been injured by the clerk’s ac-

tions. Id. art. 1937, § 1. The clerk is elected by the voters

2It should be noted that at one time the County Clerk’s

bond was payable to the Governor. Tex.Rev.Civ.Stat. art. 1937

(Vernon 1964).

C-14

of the county for a four-year term, id. art. 1935; 'Tex.Const.

art. 5, § 20, and vacancies in the office are filled by the

Commissioners Court. /d. The clerk can be suspended and

removed under the supervision of a state district judge

under the same procedures that were described above in

relation to the County Judge and County Commissioners.

Tex.Rev.Stat.Ann. art. 5970-5987. The County Clerk

is compensated out of the Officer’s Salary Fund in the

same manner as the County Judge, Commissioners and oth-

er officials. Jd. arts. 3883i, § 8(b), 412 and 3912e-4d, y 5.

The state places fees in this fund when the clerk performs

duties that aid criminal prosecutions.

The local electorate cannot abolish the offices of Coun-

ty Judge, County Clerk or Criminal District Attorney or

combine their functions. Jd. Their suspension and removal

is supervised by district court judges. Tex.Rev.Civ.Stat.

Ann. arts. 5970-5989 (Vernon 1982). These officers carry

out a number of tasks for the state including the collection

of taxes and supervision of elections. All of them can be

described as ‘‘state” officers when performing state tasks.

In fact, the Texas courts have described the County Sher-

iff, Clark v. Finley, 93 Tex. 171, 54 S.W. 343 (1898) and

County Treasurer, Moncrief v. Gurley, 609 S.W.2d 863

(Tex.Civ.App.—Fort Worth 1980, writ ref’d n.r.e.) as state

officers. On the other hand, these officers are locally elect-

ed and vacancies in these positions are filled by the County

Commissioners Court.

Of the officers discussed, the criminal district attor-

ney is most closely associated with and supervised by the

state. He spends the vast majority of his time represent-

ing the state in criminal and civil matters; the state reim-

burses the county for time he spends representing the

C-15

state in criminal matters; his bond is payable to the gov-

ernor rather than the county treasury; and the state has

created a special body, the Prosecutor’s Council, to assist

and discipline him. The County Commissioners, Judge and

Clerk are administrators who necessarily have a more local

focus, but when their duties involve the state prosecu-

torial function, they, too, in terms of their function, are

state officers. Texas counties also have dual tasks, both

local and state.

2. Texas Counties’ Local Governmental Functions and

Capacity for Providing Local Self-Governance

a. Local Functions

In recent years counties have provided some direct

services to local citizens. See, e.g., Tex.Rev.Civ.Stat.Ann.

art. 2351g-2 (Vernon 1982) (provision of disposal facil-

ities). For the most part, however, the state has either

provided these services directly, Texas Legislative Coun-

cil, Staff Research Report, Local Government Part i—

Setting and Primary Income Sources 17, 20 (1951), au-

thorized the county to enter contracts with other entities

to perform these services, Tex.Rev.Civ.Stat.Ann. art.

2351a, § 2, (Vernon 1982), or created ‘‘special districts”

to perform services in areas such as public health, educa-

tion, welfare and flood control. Texas Legislative Council

at 17, 20. Special districts are created to fill a particular

need and often exercise authority over an area that in-

cludes parts of more than one county. Laje v. Thomason,

665 F.2d 724 (Sth Cir. 1982).

b. Capacity for Self-Governance

A county is described in the Texas statutes as “‘a body

corporate and politic,” Tex.Rev.Civ.Stat.Ann. art. 1572

NI a mn A A > a i a Eth, ih lil Tecan dr Je

ee eee ee

AS PANO OD AS AEBS LT EARLS gts

C-16

(Vernon 1982 Supp.), but it ean be distinguished from a

‘‘Municipal Corporation” even though counties are dis-

cussed in Article II of the Texas Constitution entitled

‘Municipal Corporations.” Cities are created primarily

for the benefit of their citizens, while counties are primar-

ily the local ‘‘arms” or agents of the state. Heigel v. Wich-

ita County, 84 Tex. 392, 19 S.W. 562 (Tex.1892) ; City of

Gaiveston v. Posnainsky, 62 Tex. 118 (Tex.1886). This dif-

ference was highlighted in City of Sherman v. Shobe, 94

Tex. 129, 58 S.W. 949 (Tex.1900), which held that counties

were not subject to garnishment:

Counties are commonly designated quasi-corporations

for the reason that, being but political subdivisions of

the state, and organized purely for the purposes of

government, they differ essentially not only from pri-

vate corporations but also from such public corpora-

tions as towns and cities, which are voluntary, and are

established largely for the private interests of their

inhabitants. City of Galveston v. Posnainsky, 62 Tex.

118. Our statutes, it is true. expressly declare that

‘‘each county ... shall be a body corporate and politic.”

This merely confers upon the counties corporate pow-

ers for the more effectual performance of the func-

tions for which they were created, and clearly was not

intended to place therm upon the footing of private

corporations or of other municipalities. Jd. 58 S.W.

at 949-50.

The difference between counties and cities discussed

in the early decisions remains. The primary responsibil-

ity of counties is to . y out state functions, while cities

provide local services such as police and fire protection.

An important difference between the two types of govern-

mental units is that counties have no power to enact or-

dinances, but under their charters, cities of more than

9,000 inhabitants have this power. Tex.Const. art. 11, $5,

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Tex.Rev.Civ.Stat.Ann. art. 1175, § 34 (Vernon 1982). The

broad nature of cities’ capacity to provide local self-gov-

erance is demonstrated by the opening language of the

statute which enumerates some of the powers of home

rule cities: ‘‘Cities adopting the charter or amendment

hereunder shall have full power of self-government.” Id.

Cities generally have greater discretion than do counties

in carrying out certain functions. For example, they can

engage agents or employees on any terms of payment ac-

ceptable to both parties. Taxpayers Ass’n of Harris Co.

v. Houston, 100 S.W.2d 1066, (Tex.Civ.App.—Galveston,

1936), aff'd 129 Tex. 627, 105 S.W.2d 655; State ex rel.

Boree v. Catlin, 84 Tex. 48, 19 S.W. 302 (Tex.1892).

The limited constitutional and statutory powers given

to counties are generally interpreted more narrowly than

those of cities. Tri City Fresh Water Supply Dist. No. 2

of Harris County v. Mann, 135 Tex. 280, 142 S.W.2d 945

(Tex.1940). This “double standard” was pointed out in

Stratton v. Commissioners Court, 137 S.W. 1170 (Tex.Civ.

App.—San Antonio 1911, writ ref’d n.r.e.), in which the

court, after a close examination of the revelant statutes,

determined that a county had the power to impose a tax

for the construction of a county courthouse:

A distinction is usually made between municipal cor-

porations, such as incorporated cities, and quasi-cor-

porations such as counties and townships. The powers

of such governmental agencies are generally more

strictly construed than those of municipal corpora-

tions. Id. at 1177.

On the other hand, counties do enjoy a measure of fis-

cal independence, having the power to levy taxes for ‘‘coun-

ty purposes.” Such revenues are maintained in a separate

county treasury. Tex.Const. art. 8, ¢ 9.

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C-18

In sum, county government provides relatively few

direct services to citizens. In addition, their capacity to

respond to local needs and desires is limited and those

powers are narrowly construed by the courts.

3. Texas Counties as Administrative Arms of the State

Texas counties perform a number of functions for the

state including the supervision of state elections, the col-

lection of state property taxes, the construction of state

roads, bridges and ferries, and the administration of jus-

tice. The Texas Supreme Court has emphasized that when

counties act in certain capacities they are agents of the

state. Childress County v. State, 127 Tex. 343, 92 S.W.2d

1011 (Tex.1936); Bexar County v. Linden, 110 Tex. 339,

220 S.W. 761 (Tex.1920). In Childress County, the state

granted the county property for educational purposes

which the county had sold to private parties and later

retrieved when the private parties failed to make required

payments. The state had acquired a tax lien against the

property while it was in the hands of the private parties

and attempted to assert it against the county. The court

declared the tax lien invalid because it viewed the county

as an arm of the state which carries out state functions:

The land involved is agricultural school land. . . .

(State law] expressly provides that such land may be

taxed as privately owned lands, except that it may not

be taxed for state purposes. The county is merely an

arm of the state. It is a political subdivision thereof.

In view of the relation of a county to the state, the

state may use, and frequently does use, a county as

its agent in the discharge of the State’s functions and

duties. [citations omitted]. The state has appropri-

ated and dedicated to counties, for public school pur-

poses, a part of its public domain. The title thereto

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is vested in the counties. ... This is for the benefit

of the counties. When the title to this land reverted

to Childress county, it also, in a certain sense, re-

verted to the state... . Id. 92 S.W.2d at 1015-16.

{1] ‘When the county acts as an administrative body

carrying out important state functions, it is not surpris-

ing that the state exercises tight control over the execu-

tion of these functions. W.E. Benton, Texas, Its Govern-

ment and Politics, 230-31 (3rd ed. 1972). Indeed, the legis-

lature has drafted specific legislation detailing the way

in which counties are to perform state functions as one

means of controlling county administration of state pol-

icy. See, e.g., Tex.Rev.Civ.Stat.Ann. art. 2351la-6 (Ver-

non_1982). In addition, the State’s control over the per-

formance of these functions has been aided by judicially

placed restrictions on the county’s power to carry out

these functions. Unless a particular county action is ex-

plicitly authorized by the constitution or a statute, the

county will not be allowed to exercise it. For example, in

Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000

(Tex.1941), the court held that a statutory provision did

not g° - the county power to impose a tax for the purpose

of promoting growth and development of the county. In

Canales v. Laughlin, 147 Tex. 169, 214 S.W.2d 451 (Tex.

1948), the court held that the county had no authority to

appoint a ‘‘County Road Unit Supervisor” although it was

authorized to appoint a number of other officials whose

jobs related to the task of road construction and mainten-

ance. Legislation related to counties is narrowly drafted

pie and the courts have taken the position that the state has

conferred ‘‘duties” rather than ‘‘privileges” to the coun-

ties, which are to be carried out in the manner prescribed

by the state. Orndorff v. State, 108 S.W.2d 206 (Tex.Civ.

C-20

App.—E]l Paso 1937, writ ref’d n.r.e.) (county officers fall

within the definition of those officers who are considered

‘‘under the State government”). Though the state can-

not totally eliminate county discretion in exercising these

state functions, F. M. Stewart and J. L. Clark, 7 he Con-

stitution and Government of Texas, 183 (4th ed. 1949);

C. McClesky, The Government and Politics of Texas, 304

(2d ed. 1966), students of state government believe the

state is moving toward even greater control over the coun-

ty administration of certain state functions such as the

collection of state property tax, J. C. May, S. A. McCorkle

and ID. Smith, Texas Government, 354 (8th ed. 1980), as

evidenced by its creation of state supervisory bodies such,

as the Prosecutor’s Council, Tex.Rev.Civ.Stat.Ann. art.

332d (Vernon 1982).

Ill. The County's Inability

[2] For the county to be liable in this case, the ac-

cused system must be so attributed to it as to represent

the policy or custom of the county. Implicit in this attri-

bution is that the actors responsible for it were acting

for the county qua county. If their acts were not subject

to county control, the absence of county policy is an a

fortiori conclusion. Monell v. Department of Social Serv-

ices, 436 U.S. 568, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

Here, the prosecutorial activities were undertaken to meet

a state-created duty and were not subject to control by

the county. Given the historical duality of county fune-

tion, categorization of a state or county activity is best

viewed in functional terms. The Texas Supreme Court

S.W. 761 (1920) :

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A principal State functiou which [counties] perform,

in whose performance they exercise essentially State

powers, is the administration of the State’s justice.

Their local courts exist for no other purpose. Their

local constabulary is to keep the State’s peace. They

represent the State’s power in the different duties

with which they are charged, and in the execution of

those duties they exercise the State’s power for the

common welfare...

At all times, the individual defendants here, the Criminal

District Attorney, the County Clerk and the County Crim-

inal Judges, were functioning as state not county officers.

They were enforcing the state criminal law. The com-

plaint, in fact, was issued in the name of the state. In

other words, there is no county criminal law to enforce.

[I]t does not follow that because an officer is called a

“county officer” the functions he exercises are exer-

cised for the (county). They may be state officers

though their jurisdiction or powers may be confined

to the limits of the county...

Connor v. Zackry, 54 Tex.Civ.App. 188, 117 S.W. 177 (1909)

(quoting Jernigan v. Finley, 90 Tex. 205, 38 'S.W. 24, 25

(1896). As noted, the reality is that the county had no

control over these individual defendants, whose acts, the

plaintiffs argue, ‘“‘may fairly be said to represent official

[county] policy.” 436 U.S. at 694, 98 S.Ct. at £037. Of

course, a citizen or the county is authorized to bring a com-

plaint against the County Clerk or judges, but even so

only a state court can suspend or remove them. Tex.Rev.

Civ.Stat.Ann. art. 5970-5989. Indeed, the District Attor-

ney can only be suspended or removed after investiga-

tion and complaint by the state Prosecutor’s Council and

a subsequent trial in state court. Tex.Rev.Civ.Stat.Ann.

art. 332d.

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The court’s conclusion in Familias Unidas v. Briscoe,

619 F.2d 391 (5th Cir. 1980), that a county judge execut-

ing his discretionary authority under a state statute was

in effect a state rather than a county officer and that the

county would not be liable under § 1983 for his actions,

strongly suggests that the County Clerk, county judges

and District Attorney in this case were exercising state

rather than county policy. The court there adopted a

functional analysis inquiry into whether when the acts at

issue were done the official was wearing his county or

state badge. The court explained:

Because of the unique structure of county government

in Texas, the [county] judge—like other elected county

officials, such as the sheriff and treasurer—holds vir-

tually absolute sway over the particular task or areas

of responsibility entrusted to him by state statute and

is accountable to no one other than the voters for his

conduct therein. [citation omitted]. Thus, at least in

those areas in which he, alone, is the final authority or

ultimate repository of county power, his official con-

duct and decisions must necessarily be considered

those of one ‘‘whose edicts or acts may fairly be said

to represent official policy” for which the county may

be held responsible under section 1983. [citations

omitted]. The narrow authority delegated to the

county judge in [Tex.Edue.Code Ann. § 4.28 (Vernon

1972) to compel disclosure of the names of those spon-

soring a boycott of the schools] bears no relation to

his traditional role in the administration of county

government or to the discretionary powers delegated

to him by state stat

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